Zulauf v St. John's Church

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Zulauf v St. John's Church 2013 NY Slip Op 33187(U) January 7, 2013 Supreme Court, New York County Docket Number: 113917/11 Judge: Joan A. Madden 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 County Clerk's office. This opinion is uncorrected and not selected for official publication. SCANNED ON 11111201 [* 1] STJPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY WON. JOAN a. ~~~~~~ PRESENT: 9.S.G. PART Justice Index Number : 113917/2011 ZUIAUF, JAMES vs . ST.JOHN'S CHURCH SEQUENCE NUMBER : 001 INDEX NO. MOTION DATE MOTION SEQ. NO. DISMISS ACTION The following papets, numbered 1 to Notice of MotionlOrder to Show Cause Answering Amdavits , were read on this motion tolfor -Affidavits - Exhibits - Exhibits *$mijs/-d IN O W IN O W INOW. Replying Affidavits FILED JAN 112013 NEW YORK COUNTY CLERK'S OFFICE c ,J.S.C. L' 2. Ir' GRANTED ................................................ SETTLE ORDER .................................................................. CHECK AS APPROPRIATE: .......................... .MOTION IS: I. CHECK ONE: 3. CHECK IF APPROPRIATE: CASE DISPOSED 0DO NOT POST DENIED c GRANTED IN PART ] 0OTHER SUBMIT ORDER 0FIDUCIARY APPOINTMENT 0REFERENCE [* 2] Plaintiff, "against- ST. JOHN'S CHURCH, METROPOLITAN NEW YORK SYNOD OF THE EVANGELICAL LUTHERAN CHURCH I AMERICA and LYNDON HARRIS, N Defendant Metropolitan New York Synod of the Evangelical L ttheran Church of America (the "Synod") moves for an other pursuant to CPLR 32 1 1(a)(7) dismissing the complaint for failure to state a cause of action. Plaintiff opposes the motion and cross-moves to amend the complaint. Plaintiff alleges that from January 1,2009 through July 1,20 10, he was employed as the Sexton of St. John's Evangelical Lutheran Church (the ''Church"). As Sexton, he served as the superintendent of the Church and cared for its physical facilities. Plaintiff commenced this action on December 12,2011, asserting three causes of action against all defendants for breach of contract, promissory estoppel and violation of New York Labor Law, alleging that defendants failed to pay him his total promised compensation for the period of May 2009 through June 2010. In support of its motion to dismiss, defendant Synod argues that it cannot be held liable for breach of contract because it did not enter into an employment contract with plaintiff nor grant express or apparent authority to the Church or its employees to contract on its behalfi it cannot be liable under a theory of promissory estoppel because it did not make a promise on 1 [* 3] which plaintiff relied to his detriment; and plaintiffs Labor Law claim fails because plaintiff and the Synod were not in an employment relationship, the Synod never paid him any wages, and therefore the Synod could not have improperly withheld his wages. Plaintiff argues that the Synod s motion should be denied in view of his cross-motion for leave to amend the complaint to add important additional factual allegations, which clarify the Synod s relationship to the factual circumstances giving rise to Plaintiffs causes of action. The new allegations include the following: 1) plaintiff was an employee of the Synod; 2) defendant Pastor Harris, whom the Synod fired, made promises on which plaintiff relied; and 3) the Church where plaintiff worked is a subsidiary of the Synod, and the Synod retained both control over the Church s functioning and administrative decisions, as well as hiring and firing power over Church employees. The court will first consider plaintiff s cross-motion to amend the complaint. It is well settled that leave to amend a pleading shall be freely given absent prejudice or surprise from the delay. CPLR 3025(b); Miller v. Cohen, 93 AD3d 424 (1st Dept 20 12); MBIA Insurance Corp v. Greystone & Co, Inc, 74 AD3d 499 (1 Dept 2010); Pier 59 Studios, LP v. Chelsea Piers, LP, 40 AD3d 363 (lstDept 2007). On a motion for leave to amend the complaint, plaintiff need not establish the merit of his proposed new allegations, but must simply show that the proffered amendment is not palpably insufficient or clearly devoid of merit. MBIA Insurance Corn v. Greystone & Co, Inc, supra; accord Miller v. Cohen, supra; Pier 59 Studios, LP v. Chelsea Piers, - supra. LP, Here, plaintiffs proposed amendment adding factual allegations relating to his relationship with the Synod, is neither plainly lacking in merit nor palpably insufficient. 2 [* 4] Plaintiff seeks to add allegations as to defendant Synod s domination and control generally with respect to the transactions at issue, i.e. the hiring and firing of employees. While defendant Synod objects that the amendment fails to allege specific facts, the court finds that the claims as amended are adequately pleaded, since at this early stage of the action the complaint need not state specifics as to plaintiff. Further, defendant Synod fails to demonstrate prejudice or surprise resulting from the delay. Under these circumstances, the cross-motion is granted and plaintiff shall be permitted to amend the complaint. In view of this determination, defendant Synod s motion to dismiss is denied as moot. Accordingly, it is ORDERED that plaintiffs cross-motion to amend the complaint is granted and the proposed amended complaint in the form annexed to the cross-motion shall be deemed served on defendants upon service of a copy of this dccision and order with notice of entry, and defendants shall serve and file an answer or an amended answer within 10 days of such service; and it is further ORDERED that defendant Synod s motion to dismiss is denied as moot; and it is further ORDERED that the parties are directed to appear for a preliminary conference on January 31,2013 at 9:30 a.m, in Part 11, Rooin 351, 60 Centre Street. The court is notifiing the parties by mailing copies of this decision and order.

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