Cambero-Minaya v. 211 Schermerhorn Dev., LLC

Cambero-Minaya v 211 Schermerhorn Dev., LLC 2026 NY Slip Op 05761 October 7, 2026 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This decision is uncorrected and subject to revision before publication in the Official Reports. Roberto Cambero-Minaya, appellant, v 211 Schermerhorn Development, LLC, et al., defendants third-party plaintiffs-respondents; Logozzo Bros. Construction Corp., third-party defendant-respondent. Supreme Court of the State of New York, Appellate Division, Second Judicial Department Decided on October 7, 2026 2024-11904, (Index No. 707180/18) Valerie Brathwaite Nelson, J.P. Paul Wooten Janice A. Taylor Elena Goldberg Velazquez, JJ. Bader & Yakaitis, LLP (Pollack Pollack Isaac & DeCicco, LLP, New York, NY [Brian J. Isaac and Joshua Block], of counsel), for appellant. Barker Patterson Nichols, LLP, Garden City, NY (Douglas Langholz of counsel), for defendants third-party plaintiffs-respondents. Lewis Brisbois Bisgaard & Smith LLP, New York, NY (Emily S. Schierhorst and Ashley Heffernan of counsel), for third-party defendant-respondent. [*1] DECISION & ORDER In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Joseph J. Esposito, J.), entered October 7, 2024. The order, insofar as appealed from, denied the plaintiff's cross-motion for leave to amend the bill of particulars and granted that branch of the defendants third-party plaintiffs' cross-motion which was for summary judgment dismissing the complaint. ORDERED that the order is modified, on the law, by deleting the provision thereof granting those branches of the defendants third-party plaintiffs' cross-motion which were for summary judgment dismissing the causes of action alleging common-law negligence and violations of Labor Law §§ 200 and 240(1), and substituting therefor a provision denying those branches of the cross-motion; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements. On November 3, 2017, the plaintiff allegedly was injured while performing construction work on premises owned by the defendant 211 Schermerhorn Development, LLC. The defendant Oestreicher Construction Corporation acted as the general contractor on the project and hired the plaintiff's employer, Logozzo Bros. Construction Corp. (hereinafter Logozzo), as a subcontractor on the project. The plaintiff alleged that at the time of the accident, he was drilling holes into plywood when a machine fell on him from above, causing the drill to jam and injure one of his hands. The plaintiff commenced this action against the defendants to recover damages for personal injuries, asserting causes of action alleging common-law negligence and violations of Labor Law §§ 200, 240(1), and 241(6). The bill of particulars alleged that the Labor Law § 241(6) cause of action was predicated upon violations of 12 NYCRR 23-1.7(e)(2), 23-5.1(c)(2), (e)(1) and (5), (f), [*2]and (h), and 23-5.6(c) and (g). The defendants commenced a third-party action against Logozzo, seeking, inter alia, contractual indemnification. On May 5, 2023, following the completion of discovery, the plaintiff filed a note of issue and certificate of readiness for trial. In September 2023, Logozzo moved, among other things, for summary judgment dismissing the Labor Law § 241(6) cause of action. In December 2023, the defendants cross-moved, inter alia, for summary judgment dismissing the complaint. In February 2024, the plaintiff cross-moved for leave to amend the bill of particulars to allege, among other things, violations of 12 NYCRR 23-1.7(a)(1), 23-2.1(a)(2), and 23-4.2(g). In an order entered October 7, 2024, the Supreme Court, inter alia, denied the plaintiff's cross-motion for leave to amend the bill of particulars and granted that branch of the defendants' cross-motion which was for summary judgment dismissing the complaint. The plaintiff appeals. Although "'[l]eave to amend a bill of particulars is ordinarily to be freely given in the absence of prejudice or surprise'" (J.D.R.G. v Golden Brick Dev. JP, LLC, 217 AD3d 846, 848, quoting Lorincz v Castellano, 208 AD3d 573, 574), "'once discovery has been completed and the case has been certified for trial, a party will not be permitted to amend the bill of particulars except upon a showing of special and extraordinary circumstances'" (id., quoting Lorincz v Castellano, 208 AD3d at 574-575). "[T]he length of time that elapsed after the party seeking the amendment was aware of the facts upon which the motion was predicated, whether a reasonable excuse for the delay was offered, and whether prejudice resulted therefrom are factors to consider in whether to grant such a motion" (Benegas v Ardsley Country Club, Inc., 230 AD3d 1093, 1094-1095). "'[L]eave to amend a bill of particulars may properly be granted, even after the note of issue has been filed, where the plaintiff makes a showing of merit, and the amendment involves no new factual allegations, raises no new theories of liability, and causes no prejudice to the defendant'" (Achee v Merrick Vil., Inc., 208 AD3d 542, 543 [internal quotation marks omitted], quoting Skerrett v LIC Site B2 Owner, LLC, 199 AD3d 956, 960). "'The determination to permit or deny the amendment is committed to the sound and broad discretion of the trial court, and its determination will not lightly be set aside'" (Flood v Alhindawi, 238 AD3d 713, 714, quoting Scopelliti v Westmed Med. Group, 193 AD3d 1009, 1011). Here, the plaintiff sought leave to amend the bill of particulars approximately nine months after he filed the note of issue and certificate of readiness for trial, without demonstrating extraordinary circumstances warranting the proposed amendments (see Kaur v Jamaica Hosp. Med. Ctr., 237 AD3d 1178, 1180). Moreover, contrary to the plaintiff's contention, he either failed to sufficiently demonstrate that the proposed amendments had merit (see Lorincz v Castellano, 208 AD3d at 575) or that the proposed amendments "involve[d] no new factual allegations, raise[d] no new theories of liability, and cause[d] no prejudice to the defendant[s]" (Achee v Merrick Vil., Inc., 208 AD3d at 543 [internal quotation marks omitted]). Accordingly, the Supreme Court providently exercised its discretion in denying the plaintiff's cross-motion for leave to amend the bill of particulars. "'Pursuant to CPLR 3212(a), courts have considerable discretion to fix a deadline for filing summary judgment motions, so long as the deadline is not earlier than 30 days after filing the note of issue or (unless set by the court) later than 120 days after the filing of the note of issue, except with leave of court on good cause shown'" (Wittenberg v Long Is. Power Auth., 225 AD3d 730, 732 [internal quotation marks omitted], quoting Kuyenova v R & M Supermarket, 215 AD3d 940, 941; see Brill v City of New York, 2 NY3d 648, 651). "Absent a 'satisfactory explanation for the untimeliness,' constituting good cause for the delay, an untimely summary judgment motion must be denied without consideration of the merits" (Gomez v Tilden Estates, LLC, 241 AD3d 791, 793, quoting Brill v City of New York, 2 NY3d at 652). "However, '[a]n untimely motion or cross motion for summary judgment may be considered by the court where a timely motion was made on nearly identical grounds'" (Wittenberg v Long Is. Power Auth., 225 AD3d at 732, quoting Sikorjak v City of New York, 168 AD3d 778, 780). Here, the defendants' cross-motion was made more than six months after the filing of the note of issue, and the defendants offered no explanation for the delay. Moreover, those [*3]branches of the defendants' cross-motion which were for summary judgment dismissing the causes of action alleging common-law negligence and violations of Labor Law §§ 200 and 240(1) did not raise nearly identical issues as Logozzo's timely motion, since Logozzo's motion did not seek summary judgment with regard to those causes of action (see Wittenberg v Long Is. Power Auth., 225 AD3d at 732; Sheng Hai Tong v K & K 7619, Inc., 144 AD3d 887, 890). Accordingly, the Supreme Court should have denied, as untimely, those branches of the defendants' cross-motion which were for summary judgment dismissing the causes of action alleging common-law negligence and violations of Labor Law §§ 200 and 240(1) (see Gomez v Tilden Estates, LLC, 241 AD3d at 793; Wittenberg v Long Is. Power Auth., 225 AD3d at 732). However, the Supreme Court properly considered that branch of the defendants' cross-motion which was for summary judgment dismissing the cause of action alleging a violation of Labor Law § 241(6), since Logozzo's timely motion raised nearly identical issues (see Wittenberg v Long Is. Power Auth., 225 AD3d at 732; Sheng Hai Tong v K & K 7619, Inc., 144 AD3d at 890). On appeal, the plaintiff has failed to articulate any basis to disturb the Supreme Court's determination to grant that branch of the defendants' cross-motion which was for summary judgment dismissing the cause of action alleging a violation of Labor Law § 241(6) (see Lynch v Citibank, N.A., 242 AD3d 1080, 1081). The plaintiff does not challenge the court's determination that the provisions of the Industrial Code alleged in the bill of particulars were inapplicable and merely challenges the court's determination with respect to the cause of action alleging a violation of Labor Law § 241(6) on the basis of the Industrial Code provisions raised in the plaintiff's cross-motion for leave to amend the bill of particulars. Thus, in light of our determination that the court providently exercised its discretion in denying the plaintiff's cross-motion for leave to amend the bill of particulars, the portion of the order granting that branch of the defendants' cross-motion which was for summary judgment dismissing the cause of action alleging a violation of Labor Law § 241(6) must be affirmed. In light of our determination, we need not reach the plaintiff's remaining contentions. BRATHWAITE NELSON, J.P., WOOTEN, TAYLOR and GOLDBERG VELAZQUEZ, JJ., concur. ENTER: Darrell M. Joseph Clerk of the Court