DeOrdio v. Golembieski

—Order unanimously modified on the law and as modified affirmed without costs in accordance with the following Memorandum: Plaintiff was injured when she slipped on the front stairs of her residence, leased by her father from defendant. The complaint alleges that defendant was negligent in allowing or causing to exist “icy and unsafe conditions”, namely, defendant failed to install gutters on the roof of the house “so as to channel water away from” the front stairs. Supreme Court erred in granting defendant’s motion for summary judgment dismissing the complaint. Defendant failed to establish his entitlement to judgment as a matter of law (see, Zuckerman v City of New York, 49 NY2d 557, 562). In support of his motion, defendant submitted the deposition testimony of *862plaintiffs father, who testified that ice generally formed on the stairs when snow melted off the roof. He further testified that, although there was no snow on the roof that day, it was drizzling and there was “black ice” on everything. Although defendant established that there was no snow on the roof and thus that there could not have been snow melting to form ice on the stairs, plaintiffs father testified that “rain and everything" would run off the roof’ and freeze in the winter, creating an icy condition. Thus, there is an issue of fact whether the ice that was on the stairs was the result of general weather conditions, that is, freezing rain, or whether the lack of gutters contributed to the icy condition of the stairs.

The court properly denied the cross motion of plaintiff for leave to amend her bill of particulars to include new theories of liability. The cross motion was made five months after the filing of the note of issue and nearly five years after the accident, and plaintiff made no showing of special or extraordinary circumstances (see, Lycett v Niagara Frontier Tr. Sys., 81 AD2d 1034).

We modify the order, therefore, by denying defendant’s motion and reinstating the complaint. (Appeal from Order of Supreme Court, Onondaga County, Elliott, J. — Summary Judgment.) Present — Green, A. P. J., Wisner, Pigott, Jr., Hurlbutt and Scudder, JJ.