Costabile v. Damon G. Douglas Co. , 885 N.Y.S.2d 602 ( 2009 )

Order of the Appellate Term of the Supreme Court of the State of New York, First Department, entered December 18, 2008, which, to the extent appealed from as limited by the briefs, affirmed that portion of an order, Civil Court, Bronx County (Raul Cruz, J.), entered April 2, 2007, denying so much of the motion by defendants Damon G. Douglas Company (DGD) and Botanical Garden (BG) for summary judgment dismissing the remainder of plaintiff’s claim based on violation of the Industrial Code, unanimously affirmed, without costs.

Plaintiffs supplemental bill of particulars, which specified the Industrial Code sections on which his Labor Law § 241 (6) claim was based, was not prejudicial to defendants because it did not change the theory of liability.

A question of fact is presented as to whether the spot where plaintiff fell was covered by either paragraph of 12 NYCRR 23-1.7 (e), the Industrial Code provision invoked in the supplemental bill (see Smith v Hines GS Props., Inc., 29 AD3d 433 [2006]). Concur—Mazzarelli, J.P., Friedman, Catterson and AbdusSalaam, JJ. (See 21 Misc 3d 144(A), 2008 NY Slip Op 52515(U).]