Velarde v City of New York

Velarde v City of New York 2017 NY Slip Op 02743 Decided on April 6, 2017 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on April 6, 2017
Renwick, J.P., Mazzarelli, Manzanet-Daniels, Feinman, Webber, JJ.
3659N 306010/12

[*1] Christopher A. Velarde, Plaintiff-Appellant,

v

The City of New York, et al., Defendants-Respondents, Correction Officer Ms. B., etc., et al., Defendants.

Pollack, Pollack, Isaac & DeCicco, LLP, New York (Brian J. Isaac of counsel), for appellant.

Zachary W. Carter, Corporation Counsel, New York (Janet L. Zaleon of counsel), for respondents.

Order, Supreme Court, Bronx County (Mitchell J. Danziger, J.), entered December 11, 2015, which denied plaintiff's motion for leave to amend his complaint, unanimously affirmed, without costs.

Plaintiff alleges that while he was an inmate at Riker's Island, he was assaulted by a fellow inmate who is not a party to this action. Plaintiff sued the City for the negligence of its corrections officers in failing to stop the assault. When the City joined issue, it asserted CPLR 1601 as an affirmative defense, seeking to apportion damages with the nonparty assailant. Plaintiff then sought leave to amend his complaint to add causes of action under CPLR 1602(7) and (11), arguing that the City was not entitled to apportion its damages with nonparty tortfeasor since the corrections officer acted with a reckless disregard for plaintiff's safety and/or in concert with the assailant.

Leave to amend a complaint is typically freely granted, but is committed, however, to the sound discretion of the trial court (see CPLR 3025[b]; Davis v South Nassau Communities Hosp., 26 NY3d 563, 580 [2015]). To obtain leave, a plaintiff must submit evidentiary proof of the kind that would be admissible on a motion for summary judgment (see American Theatre for the Performing Arts, Inc. v Consolidated Credit Corp., 45 AD3d 506 [1st Dept 2007]). Here, plaintiff's motion was properly denied since his purported proof was insufficient to show that the correction officers were anything more than negligent.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: APRIL 6, 2017

CLERK