Opinion
173 303716/10.
02-09-2016
Dennis PATERRA, Plaintiff–Appellant, v. ARC DEVELOPMENT LLC, et al., Defendants–Respondents.
Paul G. Vesnaver PLLC, Rockville Centre (Brian D. Primes of counsel), for appellant. McGaw, Alventose & Zajac, Jericho (Ross P. Masler of counsel), for respondents.
Paul G. Vesnaver PLLC, Rockville Centre (Brian D. Primes of counsel), for appellant.
McGaw, Alventose & Zajac, Jericho (Ross P. Masler of counsel), for respondents.
Opinion
Order, Supreme Court, Bronx County (Lucindo Suarez, J.), entered on or about September 8, 2014, which granted defendants' motion for summary judgment dismissing the complaint and denied plaintiff's cross motion for partial summary judgment on the issue of liability on his Labor Law §§ 241(6) and 200 and common-law negligence claims as against defendants Arc Development LLC and Riverdale Heights LLC, unanimously affirmed, without costs.
Defendants were entitled to dismissal of all of plaintiff's Labor Law claims, since plaintiff asserted the Labor Law claims for the first time in his bill of particulars, and failed to allege them in his complaint (see Castleton v. Broadway Mall Props., Inc., 41 A.D.3d 410, 411, 837 N.Y.S.2d 732 2d Dept.2007; Webster v. Supermarkets Gen. Corp., 209 A.D.2d 405, 619 N.Y.S.2d 577 2d Dept.1994 ). The purpose of the bill of particulars is to amplify the pleadings (see Kolb v. Beechwood Sedgewick LLC, 78 A.D.3d 481, 482, 910 N.Y.S.2d 437 1st Dept.2010 ), and “may not be used to supply allegations essential to a cause of action that was not pleaded in the complaint” (Alami v. 215 E. 68th St., L.P., 88 A.D.3d 924, 926, 931 N.Y.S.2d 647 2d Dept.2011 ). Nor may the bill of particulars “add or substitute a new theory or cause of action” (Melino v. Tougher Heating & Plumbing Co., 23 A.D.2d 616, 617, 256 N.Y.S.2d 885 3d Dept.1965 ).
Plaintiff's common-law negligence claim, which was pleaded in the complaint, was properly dismissed. There is no evidence that defendants supervised or controlled plaintiff's work or had actual or constructive notice of the alleged defective condition over which plaintiff tripped (see Rajkumar v. Budd Contr. Corp., 77 A.D.3d 595, 596, 909 N.Y.S.2d 453 1st Dept.2010 ).
We have considered plaintiff's remaining contentions and find them unavailing.