Pacific Indem. Ins. Co. v Fischl

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Pacific Indem. Ins. Co. v Fischl 2012 NY Slip Op 31555(U) June 12, 2012 Supreme Court, New York County Docket Number: 110336/10 Judge: Cynthia S. Kern Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. [* 1] SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: PART Justlce lnde~m~~~10336/2010 FISCHL, RUTH vs . CAMPANELLA, EDWARD S. SEQUENCE NUMBER : 002 - ---- INDEX NO. MOTION DATE MOTION SEQ, NO. AMEND SUPPLEMENT PLEADINGS The followlng papers, numbered 1 to ,were read on thls motion tonor Notlce of MotlonlOrdsr to Show Cause - Affldavlts Anmwerlng Affidavlta - Exhiblb I Wd. - Exhlblts INO($). INO($). Rsplylng AMdavlts Upon the foregolng papers, It I ordered that thlr motlon Ir s NEW YORK COUNTY CLERK'S OFFICE Dated: I. CHECK ONE: CY- 6' l,2l\r ..................................................................... 2. CHECK AS APPROPRIATE: 3. CHECK IF APPROPRIATE: ........................... MOTION IS: ................................................ ,J.S.C. CASE DISPOSED GRANTED 0SETfLE ORDER uDO NOT POST DENIED GRANTED IN PART 0OTHER 0SUBMIT ORDER 0FIDUCIARY APPOINTMENT C] REFERENCE [* 2] Index No. 110336/10 Plaintiff, DECISION/ORDER -againstRUTH FISCHL, Third-party Plaintiff, -against- EDWARD S. CAMPANELLA and BOARD OF MANAGERS OF THE HERITAGE AT TRUMP CONDOMINIUM, Third-party Defendants. JUK 13 2 ; NEW YOHK COUNTY CLERI+S OFFICE Recitation, as required by CPLR 22 19(a), of the papers considered in the review of this motion for : Papers Numbered Notice of Motion and Affidavits Annexed .................................... Affirmations in Opposition.,..................................................... Replying Affidavits...................................................................... Exhibits...................................................................................... 1 23 , 4 5 This action arises out of water damage to an apartment located at 240 Riverside Boulevard, New York, New York (the building ). Defendant and third-party plaintiff Ruth 1 RECEIVED JUN 1 3 2012 MOTION SUPPORT OFFICE NYS SUPREME COURT - CIVIL [* 3] Fischl now moves pursuant to Civil Practice Law and Rules ( CPLR ) 8 3025(b) for leave to amend the third-party complaint to assert a sixth cause of action for damages against her former tenant, third-party defendant Edward S. Campanella. For the reasons set forth below, Ms. Fischl s motion is granted. The relevant facts are as follows. This action arises out of a water leak that occurred on February 6,2009 in apartment unit 15C (the apartment ), which was owned by Ms. Fischl. At the time of the incident, the apartment was occupied by Ms. Fischl s former tenant, Mr. Campanella. In Ms. Fischl s third-party complaint, she asserted claims against Mr. Campanella and third-party defendant Board of Managers of the Heritage at Trump Condominium ( Board of Managers ) for claims brought against her for water damage caused to other units in the building by Pacific Indemnity Insurance Company, the plaintiff in the instant action. Specifically, Ms. Fischl alleged in her complaint that Mr. Campanella was negligent as the tenant in the apartment and that the water leak was due to his negligence. Soon after the incident, Ms. Fischl sold her apartment and gave a credit to the apartment s purchasers in the amount of $1 1,500.00 for the water damage caused to the floor of her apartment. Ms. Fischl now moves for leave to amend her third-party complaint to add a cause of action against Mr. Campanella for damages to the floor of her own apartment, in the amount of $1 1,500.00, as she failed to include said claim in her original complaint. Pursuant to CPLR 3025(b), [m]otions for leave to amend pleadings should be freely granted, absent prejudice or surprise resulting therefrom, unless the proposed amendment is palpably insufficient or patently devoid of merit. On a motion for leave to amend, plaintiff need not establish the merit of its proposed new allegations, but simply show that the proffered 2 [* 4] amendment is not palpably insufficient or devoid of merit. MB1.4 Ins. Corp. v Greystone & Co., Inc., 74 A.D.3d 499,499-500 (1 Dept 2010) (internal citations omitted). Moreover, it is wellsettled that a party may be permitted to amend a complaint to allege a new cause of action even where the cause of action would be time-barred standing alone, if the new cause [of action] relates back to the facts, circumstances and proof underlying the original complaint. 39 College Point Corp. v. Transpac Capital Corp., 27 A.D.3d 454,454-55 (2d Dept 2006); see also Bellini v. Gersalle Realty Corp., 120 A.D.2d 345, 347 (1 Dept 1986) (L amendmentmay relate back to the earlier pleading so long as the earlier pleading gave the adverse party sufficient notice of the ,transaction out of which the new claim arises. ) Here, Ms. Fischl s motion for leave to amend her third-party complaint to assert a new cause of action against Mr. Campanella for damages to the floor of her apartment is granted. As an initial matter, the proposed amendment is not palpably insufficient or devoid of merit. Further, there is no unfair prejudice or surprise to the other parties as Ms. Fischl s original complaint contained allegations supporting a cause of action sounding in negligence against Mr. Campanella for damage to neighboring apartments in the building. Specifically, both the Third and Fourth Causes of Action in Ms. Fischl s complaint allege that the water damage stemming from the water leak could only have been caused by the negligence and/or carelessness of Edward S. Campanella. Moreover, because the proposed amendment relates back to the facts, circumstances and proof underlying the original complaint, it is not time-barred by the three-year statute of limitations for negligence actions. The alleged damage to the floor of Ms. Fischl s apartment was caused by the same water leak which caused the damage to neighboring apartments in the building. Further, it is likely that Mr. Campanella had knowledge of the 3 [* 5] damage to the floor of Ms. Fischl s apartment, as he was the apartment s tenant and was in possession of the apartment at the time of the leak. Accordingly, the motion for leave to amend the third-party complaint to assert a sixth cause of action against Mr. Campanella for damages to Ms. Fischl s apartment is granted. This constitutes the decision and order of the Court. Enter: J.S.C. NEW YORK COUNW Cl ¬flRS OFFICE 4

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