In the recently decided Cambero-Minaya v 211 Schermerhorn Development, LLC (2026), the Second Department affirmed the lower court's denial of leave to amend the bill of particulars to allege Industrial Code violations more than 9 months after filing the Note of Issue. The Court determined it was a proper exercise of discretion and that the dismissal of the Labor Law § 241(6) claim should stand. The Court also modified the lower court's order denying the defendants' untimely cross-motion for summary judgment as it did not raise nearly identical issues to the original motion.

Here, the plaintiff was injured while performing construction work and claimed that a machine fell on him from above while he was drilling holes into plywood, causing the drill to jam and injure his hand. He sued the defendant owner and general contractor for common-law negligence and violations of Labor Law §§ 200, 240(1), and 241(6). The plaintiff's bill of particulars originally relied on Industrial Code provisions 12 NYCRR 23-5.1(c)(2), (e)(1), (e)(5), (f), (h), and 23-5.6(c), (g) (addressing scaffolding and pole scaffolding). 

The third-party defendant, the plaintiff's employer, timely filed a motion for summary judgment to dismiss the plaintiff's Labor Law § 241(6) cause of action. Three months later, and after the deadline to file dispositive motions, the defendants filed a cross-motion to dismiss the plaintiff's causes of action for negligence and Labor Law §§ 200, 240(1), and 241(6). Then, approximately nine months after the note of issue was filed and discovery was certified as completed, the plaintiff filed a cross-motion to amend his bill of particulars to add alleged violations of 12 NYCRR 23-1.7(a)(1), 23-2.1(a)(2), and 23-4.2(g) (addressing overhead hazards, maintenance and housekeeping, and trench excavations). The Queens County Supreme Court denied the plaintiff's cross-motion for leave to amend the bill of particulars and granted the defendants' cross-motion dismissing the complaint.

On appeal, the Appellate Division held that the lower court properly denied the plaintiff's leave to amend the bill of particulars as a proper exercise of discretion. It further held that the defendants' cross-motion was an untimely filed summary judgment motion and ordered that the lower court must delete the provisions granting summary judgment dismissing the common-law negligence claim and the Labor Law §§ 200 and 240(1) claims. The Court concluded that since the third-party defendant's timely summary judgment motion addressed the Labor Law § 241(6) cause of action, the dismissal of the Labor Law § 241(6) claim should stand. 

The decision reinforced two core procedural rules in New York legal practice. First, once a note of issue is filed and a case is certified for trial with discovery completed, amending a bill of particulars requires special and extraordinary circumstances. Second, an untimely summary judgment motion or cross-motion generally cannot be considered absent good cause, except where a timely dispositive motion has already raised nearly identical issues. A party cannot use its adversary's timely motion to sustain its own untimely motion to dismiss different claims not addressed in that motion.

Practical takeaway: Post-note of issue amendments and late summary judgment motions face strict scrutiny. When preparing summary judgment paperwork or opposition to summary judgment on a Labor Law § 241(6) cause of action, double-check those prior pleadings and orders to ensure that all the claimed Industrial Code violations were actually alleged and that the motions are timely. The plaintiffs cannot add new Industrial Code theories late in the case without extraordinary justification. Additionally, the defendants would have been out of this action if they had filed a timely summary judgment motion.