Gillespie v City of New York

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Gillespie v City of New York 2013 NY Slip Op 30570(U) March 19, 2013 Sup Ct, New York County Docket Number: 111183/2011 Judge: Kathryn E. Freed 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. SCANNED ON 312512013 [* 1] SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY - I Index Number : 11118312011 GILLESPIE, DORIS vs. CITY OF NEW YORK SEQUENCE NUMBER : 001 INDEX NO. MOTION DATE A 73 MOTION SEQ. NO. - AMEND SUPPLEMENT PLEADINGS The following papers, numbered I to , were read on this motion tolfor Notice of MotionlOrder to Show Cause -Affidavits Answering Affidavits - Exhibits IW s ) . - Exhibits IW s ) . IW s ) . Replying Affidavits Upon the foregoing papers, it is ordered that this motion is Dated: 5-17- j', ,J.S.C. MAR 1 9 2013 M WSTlCE ..................................................................... 0 CASE DISPOSED DENIED 2, CHECK AS APPROPRIATE: ........................... MOTION IS: 0GRANTED 3. CHECK IF APPROPRIATE: ................................................ 0SETTLE ORDER I . CHECK ONE: DO NOT POST -FINAL DISPOSITION 0GRANTED IN PART 0OTHER [7 SUBMIT ORDER aFIDUCIARY APPOINTMENT 0REFERENCE [* 2] DECISION/ORDER Index No.: 111183/2011 Seq.No.: 001 Plaintiff, -against- PRESENT: Hon. Kathryn E. Freed J.S.C. THE CITY OF NEW YORK, Defendant, I IN^ THE REVIEW OF RECITATION, AS REQUIRED BY CPLR $221 9 ( a ) , a THIS MOTION. PAPERS NUMBERED NOTICE OF MOTION AND AFFIDAVITS ANNEXED.................. ORDER TO SHOW CAUSE AND AFFIDAVITS ANNEXED ......... ANSWERING AFFIDAVITS ............................................................. REPLYING AFFIDAVITS ................................................................. EXHIBITS........................................................................................... STIPULATIONS................................................................................. OTHER................................................................................................ ......1-2......... ..................... ..................... ..................... ....... 3-4........ ...................... ...................... UPON THE FOREGOING CITED PAPERS,THIS DECISION/ORDER ON TITIS MOTION IS AS FOLLOWS: Plaintiff moves for an Order pursuant to CPLR§3025(b) and lOOl(a), granting leave to amend the complaint to add Empire City Subway as a direct defendant in this action. No opposition has been submitted. After a review of the papers presented, all relevant statutes and caselaw, the Court grants the motion. Factual and procedural background: The instant action arises out of personal injuries allegedly sustained by plaintiff on December 1 [* 3] 23,201 0, due to a trip and fall caused by a sidewalk defect in front 35 East 50fh Street, between Park Avenue and Madison Avenue. Consequently, plaintiff commenced the instant action via a Summons and Complaint on September 30,201 1. Issue was joined by defendant City of New York by service of a Verified Answer on October 17,201 1 e On October 1 1,2012, during defendant s deposition, witness FatimaRosas, arecord searcher for the Department of Transportation, testified that a permit was issued to Empire City Subway for the purpose of repair of electric, slash, communications, RPO, cable failure. Ms. Rosas also testified that the street opening permit authorizing the opening of the roadway or the sidewalk, was issued to Empire City Subway. She further testified that said permit was in effect for the time period of December 23, 2008 to December 23, 2010. A copy of this component of Ms. Rosa s testimony is annexed to the instant motion as Exhibit B. A copy of the permit is annexed as Exhibit C. Plaintiff argues that Empire City Subway is a necessary party to this litigation and incorporating it into the action at this time is permissible in that the statute of limitations does not expire until December 23,2013. Additionally, plaintiff argues that no prejudice would accrue to defendant as the information concerning this proposed defendant was obtained from documents exchanged by defendants counsel and from the witness produced at the deposition. Conclusions of law: Leave to amend the pleadings shall be freely given absent prejudice or surprise resulting directly from the delay ( Fahev v. Countv of Ontario, 44 N.Y.2d 934,935 [1978] ). Pursuant to CPLRS 3025(b), a party may amend its pleadings at any time by leave of court and leave shall be freely given upon such terms as may be just. It is within the court s discretion whether to permit a 2 [* 4] party to amend its complaint ( see Peach Parking: C o q . v. 345 W. 40thStreet. LLC, 43 A.D.3d 82 [lstDept. 20071; Mayers v. D Anostino, 58 N.Y.2d 696 [1982]; Lanpont v. Savvas Cab Corn.. Inc., 244 A.D,2d 208 [ 1St Dept. 19971 ). On a motion for leave to amend, plaintiff need not establish the merit of its proposed new allegations ( Lucindo v. Mancuso, 49 A.D.3d 220,227 [ 1 Dept. ZOOS I), but must show that the proffered amendment is not palpably insufficient and has merit ( Pier 59 Studios. L.P. v. Chelsea Piers. L.P., 40 A.D.3d 363, 366 [lstDept, 20071; MBIA Ins. Cop. v. Grevstone & Co.. Inc., 74 A.D.3d 499 [lst Dept. 20101; Helene-Harisson Corn. v. Moneyline Networks, Inc., 6 A.D.3d 151 [lstDept. 20041 ). In the case at bar, given the nature and purpose of the proposed amendment, it does not seem likely that the City would be surprised or prejudiced. Indeed, since evidence has been submitted which indicates that proposed defendant Empire City Subway, Inc,, was granted a permit to open the subject sidewalk, adding it as a defendant seems legitimate and necessary. Therefore, in accordance with the foregoing, it is hereby ORDERED that plaintiffs motion for leave to amend the complaint to add Empire City Subway, as a defendant is granted; and it is further ORDERED that the caption is to be amended accordingly, and the amended complaint in the proposed form shall be deemed served upon a copy of this order with notice of entry thereof; and it is further ORDERED that defendant Empire City Subway shall serve an Answer to the amended complaint or otherwise respond within 20 days from the date of said service; and it is further ORDERED that counsel are directed to appear for a status conference in Room Centre Street, on May u,2013, at 2:OO P.M., and it is further 3 at 80 [* 5] ORDERED that this constitutes the decision and order of the Court. DATED: March 17,2012 1 9 2013 ENTER: )ION. -='Tq - msm- OF S l J ' P m 4

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