Bentley v Madison Ave. Realties, LLC

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Bentley v Madison Ave. Realties, LLC 2016 NY Slip Op 31610(U) August 23, 2016 Supreme Court, New York County Docket Number: 155323/2014 Judge: Robert D. Kalish 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. [* 1] SUPREME COURT OF THE STATE OF NEW-YORK . COUNTY OF NEW YORK: IAS PART 29 --------------------------------------------------~----------~--~---){ . . .( Deborah J. Bentley · Plaintiff, Index No. 155323/2014 -againstMadison Avenue Realties, LLC., 314 Fifth Avenu~, Inc., and Treatsa Pizza Corp. d/b/a Empire Pizza, and All-Star Inc. . " Defendant -------~------------------------------------------~---~------------){ Madison Avenue Realties, LLC., 314 Fifth Avenue, Inc., .Third-party Plaintiff, -againstRock Music Factory Corp. Third-party Defendant --------------------:~----------------,-----------------:-----------·-){ KALISH,J.: Upon the foregoing submitted papers the Plaintiffs i;notion to amend the caption nami~g 314 · 5th Enterprises, Inc. d/b/a Turritable Chicken Jazz and Rock Music Factory Corp as·an additiorial ' 1 . . . Defendant and to serve and file a third supplemental summons and.amended complaint naming J14· ) \ . ' 5th Enterprises, Inc. d/b/a Turntable Chicken Jazz and .Rock Musfo Factory Corp as an additional .Defendant is hereby granted without opposition as follows: · . In the underlying action the Plaintiff is seeking damages for injuries she allegedly sustained· , )' on or about August 31, 2013 due to d ceiling that coll~psed afthe pre~ises l;;ted at 31.4 Fifth Ave. in New York County. 2' of 5 -1- [* 2] Plaintiff argues in ~uppor\ of the ifts!ant motion tl\at on February 16; 2016, ~wi~ness for the / Defendant Madison Avenue Realties, LbC. ("Madison"), Peter Palmisano, appeared.for deposition . . i ' . . ' and testified that the ceiling collapse was potentially caused by the negligence of the upstairs tenant Rock Music Factory Corp. Thereafter, on March 3,, 2016, the D~fendant Madison ,electronically comm~nced a third-party actiori° again~tRdck Mu.sic Factory Co~.- On May 20, 2016, the third-party . ) . - Defendant 314 5th Enterprises, Inc. d/b/a Turntable i/s/h/a Rock Music Factory C~rp; interposed an Answer to the thiid-party complaint with counterclaims against.Madison'. On June 14, 2016, ' < • \ /- ' - (\ Madison interposed an Answer to 314, 5th Enterprises, Inc. d/b/a Turntable ;, i/s/h/a Rock M~sic . . . ~ ' ' Factory Corp.' s counterclaims . . , · Analysis .- t Standard for amending pleadings pursuant to CP.LR §3025(b). Pursuant to CPLR §3025(b), "motions for leave to amend pleadings should be freely granted, absent prejudice or surprise resulting th~iefrom, unless the proposed amendment is palpably 1 insufficient or pate~tly devo-id or°merit" CMBIA Ins. Com. v. Greystone &C~ .. Inc., 74 AD3d 499, 499-500 (NY App Div 1st Dept 2010) (internal citations omitted)). Moreover, on a motion for leave . l - to amend, the movant is ~ot required to establisq the merit of the proposed new aliegations "but . . . \ . simply show that the proffered amendment is not palpably insuffieient or dearly de~oid of merit" (MBIA Ins. Corp. v. Greystone & Co;, Inc.,-71AD3d499, 500 CNY }\pp Div lst'Dept,2010) (internal citations omitted)). ,. Upon review of the submitted papers, the Court finds that the Plaintiff has established that it . is entitled to amend the caption naming 314 5th Enterprises, Inc. d/b/a Turntable Chicken Jazz and - - Rock Music Factory Corpas an additional Defendant arid to_serve and file a third supplemental ~ ,,. , ' , I '·- summons and amend_ed.complaintnaming 31'4 5th Enteq)rises, Inc. d/b/a Turntable . Chi~ken Jazz and Rock Music Factory Corp as-an additional Defendant. Specifically, 314 5th Enterprises, Inc. d/b/a Turntable Chic,-:ken Jazz and Rock .Music Factory Corp. has been a party to the underlying -2- 3 of 5 [* 3] .... I \ action since Madison served a third-party compiaint upon 314 5th Enterprises, Inc. d/b/a Turnta~le Chicken Jazz an~ Rock Music Factory Corp. on March 3, 2016 arid 314 5th Ent~rprises, Inc. d/b/a ,· ' ). ' "\ Turntable i/s/h/a Rock Music Factory Corp. interposed an Answer to the third-party complaint with · I I ' ·counterclaims against Madison on May 20, 2016 . .' Conclusion. Accordingly and forthe reasons so stated it is h~reby '' ORDERED that the Plaintiffs motion to amend ithe caption '!nd to file a third supplei;nental summons and amended complaint is hereby granted w~thout opposition. It is_further ORDERED that Plaintiff shall ser\re a third suppl,emental summons and amended complaint \ . . .J ~ in the form attached to Plaintiff the moving papers as exhibit 15 within 20 days of the entry: of this . ' . ·' -.. order. The caption on the thi;d supplemental su~mons and amended complaint shall read as follows: ) DeborahJ. Bentley ·against. Madiso.n· A venue Realties, LLC, ' 314-Fifth Avenue, Inc., Treats;i P.izza Corp. d/b/a Empire Pizza; _All-Star, Inc, 314 5th Enterprises, Inc. d/b/a Turntable Chicken Jazz and Rock Music Factory Corp. . ) \ i . I .) -34 of 5 ( [* 4] • It is further I -~ .... ORDERED that the Defendants are hereby granted 'leave to serve.and file answers and/or I amended answers to the third supple~ental summons and amended complaint as per CPLR upon . Plaintiffs service of the third supplemental summons and amended complaint. ,\, The foregoing constitutes the ORDER and DECISION of the Court. ENTER: I I ' ON. ROBERT D. KALISH . I. ! f /' -4- 5 of 5 - J.S.C..

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