Lombardo v Mastec N. Am., Inc.
Annotate this CaseDecided on December 17, 2009
Supreme Court, Kings County
Santo Lombardo and Nancy Lombardo, Plaintiffs,
against
Mastec North America, Inc., I.B.E.W. Local No.3, Queens Network Cable, and Telergy Communications, Defendants
27324/01
Plaintiffs' Counsel
Lalit K. Jain, Esq.
Law Offices of Lalit K. Jain
61-22 Booth Street
Rego Park, NY 11374-1034
Francois A. Rivera, J.
By notice of motion filed on August 24, 2009, under motion sequence
number [*2]eleven, plaintiff Santo Lombardo (hereinafter the
injured plaintiff) and Nancy Lombardo, his wife, (collectively, plaintiffs) jointly move for an
order pursuant to CPLR § 3025, granting them leave to serve and file an amended
complaint, and for an order granting them restitution.
BACKGROUND
Plaintiffs commenced the instant action by filing a summons and verified complaint on or about July 8, 2001. Defendant Queens Network Cable Corp., (hereinafter Queens Cable), joined issue by service of a verified answer on or about September 10, 2001. Santo Lombardo brings this action for personal injuries he sustained from an assault allegedly committed by Sean Regan and Kenneth Plaza, two Queens Cable employees. His wife brings a derivative claim for loss of her husband's services and consortium.
On May 16, 2008, Queens Cable moved for summary judgment seeking dismissal of the
initial complaint insofar as asserted against it. Queens Cable asserted that Messrs. Regan and
Plaza were acting outside the scope of their employment at the time they assaulted the injured
plaintiff. On February 4, 2009, the court issued its decision and order denying Queens Cable's
motion (the prior order). On April 23, 2009, plaintiffs filed a motion under sequence number ten
(the reargument motion) pursuant to CPLR § 2221, seeking leave to reargue or renew their
opposition to the prior motion, and upon searching the record pursuant to CPLR § 3212 (b),
granting them partial summary judgment against Queens Cable on the issue of liability. By order
dated December 15, 2009, the court denied plaintiffs' motion to reargue and renew.
MOTION PAPERS
Plaintiffs' motion papers consist of an attorney's affirmation and exhibits labeled A through D. Exhibit A is a copy of plaintiffs' summons and the initial complaint. Exhibit B is a copy of the verified answer of Queens Cable and co-defendant Mastec North America, Inc. Exhibit C is a copy of the verified answer of co-defendant Telergy, Inc. Exhibit D is the proposed amended verified complaint, dated June 22, 2009, which restates paragraphs 32 through 37 of the initial complaint to add a vicarious liability claim against Queens Cable (the third cause of action) and which incorporates by reference the remaining paragraphs of the initial complaint. The proposed amended complaint contains a notation, "As Amended to Conform to the Evidence in the Record," on page 2 thereof.
Queens Cable's opposition consists of an attorney's affirmation and exhibits labeled A through F. Exhibit A is a copy of the transcript of oral argument held on June 5, 2009 on the reargument motion. Exhibits B, C, and E are copies of Queens Cable's opening appellate brief, the addenda thereto, and its reply appellate brief, respectively, in connection with its appeal of the prior order. Exhibit D is a copy of plaintiffs' responsive appellate brief. Exhibit F is a copy of the entire record on appeal.
Plaintiffs' reply consists of an attorney's affirmation and various documents labeled [*3]collectively as "Exhibits." However, plaintiffs' counsel does not
refer to any of the aforementioned documents in his reply affirmation. Plaintiffs also submit a
copy of the note of issue, dated June 5, 2009.
APPLICABLE LAW
CPLR § 3025 (b) provides that: (b) A party may amend his pleading, or supplement it by setting forth additional or subsequent transactions or occurrences, at any time by leave of court or by stipulation of all parties. Leave shall be freely given upon such terms as may be just including the granting of costs and continuances.
Pursuant to CPLR § 3025 (b), leave shall be granted provided that the amendment is not palpably insufficient, does not prejudice or surprise the opposing party, and is not patently devoid of merit (see Santori v Met Life, 11 AD3d 597, 598 [2nd Dept., 2004]). As the Appellate Division, Second Department summarized in Lucido v Mancuso (49 AD3d 220 [2nd Dept., 2008], appeal withdrawn 12 NY3d 804 and 813 [2009]), "a plaintiff seeking leave to amend the complaint is not required to establish the merit of the proposed amendment in the first instance" (id. at 227). Under the Lucido standard, a movant who seeks to amend a pleading must meet the burden of showing that " the facts as alleged' in the proposed amended complaint or answer fit within [a] cognizable legal theory' as a cause of action or defense, as the case may be, but does not require the proponent to make any evidentiary showing that the amendment has merit" (James v Government of St. Lucia, 23 Misc 3d 1110 [A], 2009 WL 1018628, [NY Sup Ct, Kings County 2009] [citing Noonan v City of New York, 9 NY3d 825, 827 [2007]).
While leave to amend a pleading under CPLR § 3025 (b) "shall be freely given upon such terms as may be just," the decision whether to grant such leave is within the court's sound discretion (see Edenwald Contr. Co. v City of New York, 60 NY2d 957, 959 [1983]). "The exercise of that discretion will not be lightly disturbed (see Beuschel v Malm, 114 AD2d 569 [1985])" (Keating v. Nanuet Bd. of Education, 44 AD3d 623 at 624 [2nd Dept. 2007]). Mere lateness is not a barrier to the amendment. It must be lateness coupled with significant prejudice to the other side, the very elements of the laches doctrine (see Edenwald Contr. Co., Inc. v City of New York, 60 NY2d 957, 959 [1983]; Public Adm'r of Kings County v Hossain Constr. Corp., 27 AD3d 714 [2nd Dept., 2006]). CPLR § 3025 (c) provides that the court may permit pleadings to be amended before or after judgment to conform them t o the evidence, upon such terms as may be just.
CPLR § 3025 (c) serves to conform the pleadings to the proof (see Knox v Estate of
Sprague, 293 AD2d 451 [2d Dept., 2002], lv denied 98 NY2d 613 [2002]). The
purpose of Rule 3025 (c) is "to have the final judgment dictated by what the evidence actually
reveals at trial rather than by what the pleadings and bill of particulars alleged it would be"
(Siegel, NY Prac § 404 [3d ed]).
[*4]DISCUSSION
Plaintiffs' first request is for leave to plead a respondeat superior theory of liability against Queens Cable. According to plaintiffs, the omission of this theory in their initial complaint was an inadvertent "technical" error. They assert that the proposed amendment is necessary, pursuant to CPLR § 3025 (c), to conform the evidence to the pleadings on the record, either before or after judgment on plaintiffs' reargument motion under motion sequence number ten. Plaintiffs' second and final request is for summary judgment on the issue of Queens Cable's "restitution" liability.
In opposition, Queens Cable argues, among other things, that leave to amend should be denied because the proposed vicarious liability claim is patently devoid of merit. In that regard, Queens Cable refers the court to the briefs filed in connection with its appeal of the prior order to demonstrate that there are no issues of fact supporting that claim. Moreover, Queens Cable contends that the proposed amendment should be denied because plaintiffs have not submitted a reasonable excuse for their delay in seeking leave to amend.
In their reply, plaintiffs, for the most part, reiterate their request for "restitution."
Leave to Amend
The court finds that plaintiffs' motion, although characterized as one for leave to amend the complaint to conform it to evidence pursuant to CPLR § 3025 (c), is actually a motion for leave to amend pursuant to CPLR § 3025 (b). A party seeking leave to amend in accordance with CPLR § 3025 (b) must demonstrate that the facts as alleged in the proposed amended complaint fit within a cognizable legal theory as a cause of action. Since it is undisputed that Queens Cable was the employer of Messrs. Regan and Plaza during the relevant time period, plaintiffs have met their minimum burden of showing that the facts support a cognizable claim against Queens Cable on the theory of vicarious liability for the individual acts of its employees. Moreover, the court can discern no ensuing prejudice if the proposed claim were added because the vicarious liability claim is based on the same set of facts that form the basis for the initial complaint, and Queens Cable was provided ample notice of such claim when it was specifically raised at oral argument on the reargument motion.
Other than generally commenting on the tardy nature of plaintiffs' request for leave to amend, Queens Cable fails to allege any particular prejudice resulting from the proposed amendment. Mere lateness, uncoupled with significant prejudice to the other side, does not bar an amendment (see St. Paul Fire & Marine Ins. Co. v Town of Hempstead, 291 AD2d 488, 489 [2nd Dept., 2002]). Accordingly, that branch of plaintiffs' motion for leave to amend the complaint by adding a vicarious liability claim against Queens Cable is granted, albeit with three caveats noted below.
First, the proposed amended complaint, in the form annexed as Exhibit D to plaintiffs'
motion, improperly incorporates by reference paragraphs 1 through 31 and 38 through 55 of the
initial complaint. An amended complaint, once served, supersedes the [*5]initial complaint and becomes the only complaint in the case as
though the initial complaint was never served (see Elegante Leasing, Ltd. v Cross Trans Svc, Inc., 11 AD3d 650
[2nd Dept., 2004]; see also Titus v Titus, 275 AD2d 409, 410 [2d Dept., 2000]).
Plaintiffs will have to restate in full in the amended complaint the relevant allegations of the
initial complaint. Second, the notation "As Amended to Conform to the Evidence in the Record"
on page 2 of the proposed amended complaint is inappropriate and must be deleted because leave
to amend is granted herein pursuant to CPLR § 3025 (b), not 3025 (c). Third, the correct
legal names of Queens Network Cable Corp. and Telergy, Inc. should be used in the amended
complaint.
Request for Restitution
Plaintiffs also request that the court grant them summary judgment for restitution. Contrary to the requirements of CPLR § 2214 (a), plaintiffs cite no legal authority for such relief. The court notes that there is no specific claim for restitution in either the initial or the amended complaint. Accordingly, that branch of plaintiffs' motion which seeks restitution is denied with prejudice.
In sum, plaintiffs' motion for leave to amend the complaint is granted, provided that plaintiffs serve an amended complaint, in accordance with this decision and order, within thirty (30) days of service of a copy of this order with notice of entry. Queens Cable shall have twenty (20) days thereafter to serve an amended answer.
The foregoing constitutes the decision and order of this court.
E N T E R,
J.S.C.
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
