Grant v Solomon R. Guggenheim Museum

Annotate this Case

Download PDF

Grant v Solomon R. Guggenheim Museum 2013 NY Slip Op 32063(U) September 4, 2013 Supreme Court, New York County Docket Number: 112027/09 Judge: Cynthia S. Kern Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx and Westchester County Clerks' offices. This opinion is uncorrected and not selected for official publication. [* 1] SUPREME COURT OF THE STATE OF NEW YORM NEW YORK COUNTY PRESENT: PART Justice index Number : 112027/2009 GRANT, JAMES VS. MOTION DATE SOLOMON R. GUGGENHEIM SEQUENCE NUMBER : 004 - INDEX NO. MOTION SEQ: NO. AMEND CAPTlONlPARTlES The following papers, numbered 1 to Notice of MotionlOrder to Show Cause Answering Affidavits , were read on this motion to/for -Affidavits - Exhibits IW s ) . IW s ) . IN W . - Exhibits Replying Affidavits Upon the foregoing papers, it is ordered that this motion is is decided in accordance with the annexed decision\ ! IAS MOTION SUPPORT OFFICE Dated: , J.S.C. ..................................................................... 2. CHECK AS APPROPRIATE: ........................... MOTION IS: I. CHECK ONE: 3. CHECK IF APPROPRIATE: ................................................ CASE DISPOSED GRANTED NON-FINAL DISPOSITION 0GRANTED IN PART 0OTHER 0SUBMIT ORDER 0FIDUCIARY APPOINTMENT 0REFERENCE 0DENIED 0SETTLE ORDER 0DO NOT POST [* 2] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: Part 55 ...................................................................... X JAMES GRANT, Index No. 1 12027/09 Plaintiff, DECISION/ORDER -againstSOLOMON R. GUGGENHEIM MUSEUM AND F.J. SCIAME CONSTRUCTION CO. INC., Defendants. ...................................................................... X F.J. SCIAME CONSTRUCTION CO. INC., Index No. 59 1030/09 Third-party Plaintiff, -againstA & B MCKEON GLASS, INC., P; I Second Third-party Plainti LE Nd. 90178/10 -againstA & B MCKEON GLASS, INC., SOLOMON R. GUGGENHEIM MUSEUM and F.J. SCIAME CONSTRUCTION CO. fNC., Third Third-party Plaintiffs, -againstBAY CRANE SERVICE, INC., 1 Index No. 590948110 [* 3] I . ..., ., .. ., ,. [* 4] Third Third-party Defendant. .................................................................... X SOLOMON R. GUGGENHEIM MUSEUM and F.J. SCIAME CONSTRUCTION CO. INC., Fourth Third-party Plaintiffs, Index No. 590372111 -against- ROEHL TRANSPORTATION MC., Fourth Third-party Defendant. .................................................................... X HON.CYNTHIA S. KERN, J.S.C. Recitation, as required by CPLR 2219(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 2 3 4 Plaintiff James Grant commenced the instant action to recover for injuries he allegedly sustained as a result of window renovations being performed at the Guggenheim Museum (the Museum ) in New York City on May 23,2008. Plaintiff now moves for an order granting him leave to amend his complaint to add third-party defendant ROEHL Transportation Inc. ( ROEHL ) as a direct first-party defendant although his time to do so has expired. For the reasons set forth below, plaintiffs motion is granted. The relevant facts are as follows. In or around May 2008, the Museum was renovating its windows which included the hoisting of heavy crates of glass replacement windows from a delivery truck up onto the Museum s balconies. Petitioner was a local union 580 ornamental 2 I [* 5] . ironworker who was employed by third-party defendant A & B McKeon Glass, Inc. (,,A & By ). On or about May 23,2008, plaintiff was unloading the glass crates when he was allegedly struck by an unsecured 5,000-pound crate from approximately four feet above, sustaining severe injuries. In or around September 2009, plaintiff commenced the instant action against defendants the Museum and F.J. Sciame Construction Co. Inc. ( Sciame ), the general contractor, alleging causes of action for negligence and violations of Sections 200,240( 1) and 24 l(6) of the Labor Law and certain sections of the Industrial Code. In late 2009, the Museum and Sciame individually commenced third-party actions against A & B, which interposed an answer in January 2010. In October 2010, the Museum and Sciame commenced another third-party action against Bay Crane Service, Inc. ( Bay Crane ), which interposed an answer in February 201 1. In or around April 201 1, the Museum and Sciame commenced another third-party action against ROEHL, the trucking company hired by A & B to transport the crates. Discovery proceeded and the depositions of plaintiff, the Museum, Sciame, A & B and Bay Crane were conducted. Plaintiff alleges that during a June 23,20 1 1 non-party deposition of Craig Celmer, a former empIoyee of A & B, plaintiff obtained a video surveillance recording establishing that ROEHL s actions were a direct causative factor of the accident. Plaintiff alleges that the video clearly identifies the ROEHL truck driver, Kirk Asbury, carelessly and recklessly pulling down on the J-bar held by Plaintiff which caused the 5000 pound crate of glass to strike Plaintiff, knocking him from the trailer and down an additional four feet underneath the trailer. Plaintiff now seeks to amend his complaint to add ROEHL as a direct first-party defendant although his time to do so has expired. 3 [* 6] . Pursuant to CPLR 6 203(f), A claim asserted in an amended pleading is deemed to have been interposed at the time the claims in the original pleading were interposed, unless the original pleading does not give notice of the transactions, occurrences, or series of transactions or occurrences, to be proved pursuant to the amended pleading. In Dufa v. Horton Memorial Hospital, 66 N.Y.2d 473 (1985), the Court of Appeals addressed the issue of whether CPLR 6 203(f) applies to claims against a third-party defendant against whom the statute of limitations has already run. In holding that it does, the Court of Appeals stated: It is evident that when a third party has been served with the thirdparty complaint, and all prior pleadings in the action, as required by CPLR 1007, the third-party defendant has actual notice of the plaintiff s potential claim at that time. The third-party defendant must gather evidence and vigorously prepare a defense. There is no temporal repose. Consequently, an amendment of the complaint may be permitted, in the court s discretion, and a direct claim asserted against the third-party defendant, which, for the purposes of computing the Statute of Limitations period, relates back to the date of service of the third-party complaint... [where, within the statutory period, a potential defendant is fully aware that a claim is being made against him with respect to the transaction or occurrence involved in the suit, and is, in fact, a participant in the litigation, permitting an amendment to relate back would not necessarily be at odds with the policies underlying the Statute of Limitations. In such cases, there is room for the exercise of a soundjudicial discretion to determine whether, on the facts, there is any operative prejudice precluding a retroactive amendment. (Internal citations omitted). Thus, the plaintiff must show that the potential direct first-party defendant had adequate notice of plaintiffs claims at the time the third-party complaint was served and that it will not be prejudiced by the delay as the potential direct defendant may be no worse off than [it] would have been if plaintiq] had exercised [its] right under CPLR 1009 to 4 [* 7] . amend [its] complaint within 20 days after service of the third-party complaint to assert a direct claim against the third-party defendant[]. Holst v. Edinger, 93 A.D.2d 3 13, 3 16 (lstDept 1983). In the instant action, plaintiffs motion for an order granting him leave to amend his complaint to add ROEHL as a direct first-party defendant is granted. Although plaintiffs time to commence an action against ROEHL expired in May 201 1, ROEHL was brought in as a thirdparty defendant by Sciame and the Museum one month earlier, in April 201 1, when it was also served with the underlying complaint. Therefore, ROEHL may be added as a direct defendant as it had actual notice of plaintiffs potential claims at that time. See DufB, 66 N.Y.2d 473. Additionally, ROEHL will not be prejudiced by the delay as it will be no worse off than it would have been if plaintiff exercised his right to amend the complaint immediately after an action was commenced against ROEHL. Although the court notes that plaintiff waited two years to add ROEHL as a direct defendant since obtaining the video recording, such delay is not prejudicial as ROEHL has participated in all discovery, including depositions of plaintiff, Sciame, the Museum, A & B and Bay Crane. Additionally, ROEHL s assertion that it has been prejudiced because it would have adopted a strategy to directly defend against any claims had an action by plaintiff been timely commenced against it is without merit. The fact that ROEHL may have adopted a different strategy is insufficient to establish prejudice. The amendment of the complaint merely seeks to add a new theory of recovery or defense arising out of a transaction or occurrence already in litigation. A party is likely to have collected and preserved available evidence relating to the entire transaction or occurrence and the defendant s sense of security has already been disturbed in the pending action.... Duffi, 66 N.Y.2d at 477. However, to the extent ROEHL seeks additional discovery to aid in its defense of plaintiffs claims, the Court will 5 [* 8] address such request at a Compliance Conference with all parties present. ROEHL s assertion that plaintiff cannot get the benefit of the relation back doctrine on the grounds that ROEHL and the other first-party defendants are not united in interest and are adverse parties is without merit. Whether the parties are united in interest or adverse is immaterial as the issue before this court is only whether plaintiffs direct claim against a thirdparty defendant relates back to the date of service of the third-party complaint for statute of limitations purposes. It is well-settled that such a claim will relate back if the third-party complaint and the amended complaint plaintiff seeks to serve arise from the same transaction or occurrence. See Du@, 66 N.Y.2d 473. Here, plaintiffs claims against defendants and thirdparty defendant ROEHL arise out of his accident that occurred at the Museum on May 23,2008 and thus they relate back to the date of service of the third-party complaint against ROEHL. Accordingly, plaintiffs motion for an order granting him leave to amend his complaint to add ROEHL as a direct first-party defendant is granted. The Clerk is directed to m e n d the caption accordingly. The parties are to appear for a Compliance Conference on October 1,2013 at 60 Centre Street, Room 432 at 11:00 a.m. to address any outstanding discovery. This constitutes the decision and order of the court. FILEP nter: i SEP 0 5 2013 i , ... 6 1 - , , t% 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.