Fazio Masonry, Inc. v Barry, Bette & Led Duke, Inc.

[*1] Fazio Masonry, Inc. v Barry, Bette & Led Duke, Inc. 2004 NY Slip Op 51601(U) Decided on December 14, 2004 Supreme Court, Albany County Benza, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on December 14, 2004
Supreme Court, Albany County

FAZIO MASONRY, INC., Plaintiff,

against

BARRY, BETTE & LED DUKE, INC., and BBL CONSTRUCTION SERVICES, LLC, , Defendants.



196-01



Donohue, Sabo, Varley & Armstrong, P.C.

Attorneys for Plaintiff

Bruce S. Huttner, Esq. of Counsel

24 Aviation Road

P.O. Box 15056

Albany, New York 12212

Phelan, Burke, & Scolamiero, LLP

Attorneys for Defendants

Timothy S. Brennan, Esq. of Counsel

302 Washington Avenue Extension

P.O. Box 15085

Albany, New York 12212

Louis C. Benza, J.

Plaintiff moves for an order for leave to amend the complaint pursuant to CPLR 3025. Defendants oppose the motion.

Plaintiff commenced this action on January 2, 2001 seeking damages for breach of contract for delays on a construction project at the Tang Museum at Skidmore College. Plaintiff was hired as a sub-contractor by defendants to perform masonry work at the museum. Plaintiff alleges the defendants interfered with plaintiff's ability to perform the required work. Plaintiff contends the masonry work was to be completed by January 20, 2000 with the exception of punchlist items which were to be completed by April 17, 2000. Plaintiff alleges defendants [*2]extended the project causing delays whereby the project was not completed until August 31, 2000. Plaintiff alleges defendants' delays and mismanagement of the project added additional costs to plaintiff in the amount of $542,323.00. In addition, plaintiff alleges causes of action in trade defamation, libel and slander per se. Plaintiff contends the employees of defendants created an extremely hostile work environment by harassing the plaintiff with ethnic discrimination. Plaintiff alleges defendants' employees continually issued derogatory remarks about plaintiff's Italian heritage.

Plaintiff now seeks to amend its complaint for the fourth time alleging causes of action for prima facie tort, intentional infliction of emotional distress and negligence for the emotional injuries Anthony Fazio sustained from the malicious conduct of defendants. Mr. Fazio, as a corporate officer of plaintiff, alleges as a result of defendants' harassment and malice, he has suffered emotional distress and has been treated by a psychiatrist since May of 2000. Plaintiff's attorney alleges he just discovered Mr. Fazio's complaint for emotional distress. Mr. Fazio claims he never advised his attorney of his complaints or treatments as he was embarrassed that he was being treated for a psychological condition. Mr. Fazio has been diagnosed with adjustment disorder with mixed anxiety and depressed mood caused by ethnic slurs directed at him on the job site by defendants.

Plaintiff seeks an order to serve an amended complaint to add Anthony Fazio as an additional plaintiff. Plaintiff acknowledges that the statute of limitations for intentional infliction of emotional distress and prima facie tort is one year. Plaintiff seeks to assert a claim pursuant to CPLR 203(f) alleging the causes of action in the original pleadings give defendants notice of the transactions and occurrences claimed. Plaintiff contends all of the underlying facts alleging new individual claims were detailed in plaintiff's original complaint. Plaintiff contends the new claims arise out of the same conduct, transaction, or occurrence originally alleged and defendants cannot claim surprise or prejudice.

Defendants allege the prior three complaints seek damages for breach of contract, unjust enrichment, quantum meruit, trade defamation and prima facie tort. Defendants allege Mr. Fazio realizes the statute of limitations has expired yet offers no excuse for the three year delay in asserting his individual claims. Defendants contend Mr. Fazio commenced psychological treatment on May 2, 2001 and there is no reasonable excuse for the delay in asserting the new claims. Defendants contend Mr. Fazio's claims do not "relate back" to the original claim since defendants had no notice of the time-barred personal injury claims, the extreme delay in asserting the personal injury causes of action is prejudicial as discovery is under way, there was no notice of the personal injury claims and plaintiff has failed to offer a reasonable excuse for the extreme delay in asserting the new claims.

Leave to amend a complaint rests within the trial court's discretion and should be freely granted in the absence of prejudice or surprise resulting from the delay except in situations where the proposed amendment is wholly devoid of merit (Moon v. Clear Channel Communications, Inc., 307 AD2d 628). The relation back doctrine enables a plaintiff to correct a pleading error by adding either a new party or a new claim after the statute of limitations has expired (see, CPLR 203(f); Buran v. Coupal, 87 NY2d 173). Generally, relation back of the claims of an intervening party will be permitted when that party is imposing claims which are "the same as or similar to" those set forth in the original complaint (State of New York v. General Electric Co., 199 AD2d [*3]595). The "relation back" statute provides for statute of limitations purposes, a claim in an amended pleading will be deemed to relate back to the time the claim in the original pleading was interposed as long as the original claim gives notice of the transaction or occurrence out of which the claim in the amended pleading arises (Bank of New York v. Midland Avenue Development Co., 248 AD2d 342). It is incumbent upon a movant who has been guilty of extended delay in seeking leave to amend to make a showing of reasonable excuse for the delay (Thompson v. Connor, 178 AD2d 752).

Plaintiff's motion to amend the complaint is granted. The prima facie tort cause of action alleged by Mr. Fazio in the fourth proposed amended complaint was a continuing course of alleged harassment and discrimination during the duration of the contract until the substantial completion of the project on August 31, 2000. Mr. Fazio's cause of action accrued when the relationship with defendants ended. The statute of limitations for intentional infliction of emotional distress and prima facie tort is one year. Mr. Fazio's claims would have been timely as the original action was commenced on or about January 2, 2001 within the one year period from when the contract was completed. The defendants do not dispute the merits alleged in the fourth amended complaint but rather challenge the timeliness of the amendment. This Court determines that the cause of action for prima facie tort alleged by Mr. Fazio in the proposed fourth amended complaint would have been timely as it relates back to the period when the original action was commenced on January 2, 2001 and before the expiration of the one year statute of limitations on August 31, 2001.

The original complaint gave defendants notice of the transactions and occurrences relating to the allegations of malice, harassment, slander, libel and ethnic discrimination by defendants' employees against plaintiff. The plaintiff is a corporate entity. Mr. Fazio, as an individual officer of plaintiff, sustained the brunt of defendants' hostility and harassment. Mr. Fazio sought counseling due to the hostility he endured while working on this project and it is very plausible that he was embarrassed by admitting that he sought psychological counseling for the emotional distress he endured. Since Mr. Fazio is still treating with the psychiatrist, the court finds that the delay was reasonable. Moreover, defendants cannot demonstrate surprise or prejudice as they have been fully apprised of the discriminatory allegations of plaintiff in the various complaints to date. In addition, since discovery is not complete, defendants cannot allege any prejudice if the complaint is amended. Since the statute of limitations has expired (see, CPLR 215), the plaintiff may utilize CPLR 203(f) as the amended complaint will relate back to the time the original claim was interposed as the original claim gave defendants notice of the transactions or occurrences to be proved.

Accordingly, plaintiff's motion to amend the complaint pursuant to CPLR 3025 is granted.

This memorandum constitutes the Decision and Order of this Court. All papers including this Decision and Order are returned to the attorneys for plaintiff. The signing of this Decision

and Order shall not constitute entry or filing under CPLR 2220. Counsel is not relieved from the applicable provision of this rule with regard to filing, entry and Notice of Entry.

Dated:Albany, New York

December , 2004

Louis C. Benza, JSC

Papers Considered:

1.Notice of Motion dated May 12, 2004;

2.Affirmation of Bruce S. Huttner, Esq. dated May 12, 2004 with exhibits annexed;

3.Affidavit of Anthony Fazio dated May 12, 2004;

4.Affidavit of Timothy S. Brennan, Esq. dated May 26, 2004 with exhibits annexed;

5.Defendants' Memorandum of Law dated May 26, 2004.