Mitchell v Leyton

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Mitchell v Leyton 2017 NY Slip Op 33025(U) July 14, 2017 Supreme Court, Richmond County Docket Number: 101481/14 Judge: Thomas P. Aliotta Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [* 1] Office of the Richmond County Clerk - Page 3 0!!1t.. o! the Richmond County Clerk - Page l Of or 9 4/ 17/2019 10: 19:21 AM 5 8/24/2017 10:09:49 AH SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF RICHMOND -------------------------------------------------------------------x EST ATE OF KADEEM MITCHELL and MEIR SEEMAN, Plaintiff, -against- PART C-2 HON. THOMAS P. ALIOTTA DECISION AND ORDER Index No. I 01481114 MARIA XIMENA LEYTON, OSWALDO GUTIERREZ and THE CITY OF NEW YORK, Motion No. 999 - 001 Defendants. -------------------------------------------------------------------x The following papers numbered t to 3 were marked fully submitted on the 17" day of May 2017. Papen Numbered Notice of Motion to Amend by Plaintiffs, with Supporting Papers, ::;i Exhibits (dated March 6, 2017) . . ... . ............... .. .... .... ........ ~ . In - _, :::: 3 Affinnation in Opposition by Defendant OSWALDO GUTIERREZ, § ~ (dated March 28, 2017) ....... . . . .... . ... . ........................... - · 2n ui g Affirmation in Opposition by Defendant MARIA XTMENA LETON J> ~ (dated April 3, 2017) . . ... . .... .. ....... ... ... . .. .... . ........ .... . ... r.") 3 ~ .. r.:=- r i Reply Affirmation of Plaintiffs w ~ (dated April 3, 2017) ............. ..... ................................ . 4 Upon the foregoing papers, plaintiffs' motion to amend the complrunt to assert a derivative cause of action on behalf of decedent's father, KIRYA M1TCHELL, is granted as against defendants MARIA XIMENA LEYTON and OSWALDO GUTIERREZ only. Plaintiffs commenced this action on September 16, 2014 to recover damages for the wrongful death of KADEEM MITCHELL (hereinafter "decedent") after the motorcycle he was [* 2] Office of the Richmond County Clerk - Page 4 O!fic!C or ~he Rl.chmond County Clerk - Page 2 of 9 4 / 17 / 20l9 l O:l9: 21 AM or 5 8/24 /2011 10:09:49 AM f ESTATE OF MITCHELL v. LEYTON. et al. operating was involved in a collision with n vehicle owned and operated by defendant MARJA XIMENA LEYTON and a second vehicle owned and operated by defendant OSWALDO GUTIERREZ. The accident occurred on April 5, 2014 on School Road between Lily Pond Avenue and Dennis Torricelli Drive on Staten Island. Decedent passed away six days later on April 11, 2014. Plaintiffs have also asserted claims against defendant THE CITY OF NEW YORK (hereinafter THE CITY) for failing to properly maintain the roadway where the accident occurred in spite of actual or constructive notice of a dangerous condition existing at that location. In addition, a cause of action for property damage has been asserted on behalf of plaintiff MEIR SEEMAN, the owner of the motorcycle which decedent was operating. A Notice of Claim was served upon THE CITY on June 13, 2014, and a hearing was conducted pursuant to General Municipal Law §50-h on March 16, 2015. In the current application, plaintiffs seek permission to amend their complaint pursuant to CPLR 3025(b) to add a new plaintifT, KIRYA MITCHELL, who is decedent's father, and to assert derivative causes of action on his behalf for loss of services, support and voluntary assistance which the decedent allegedly provided to MITCHELL.' Following the deposition of plaintilT MEIR SEEMAN, plaintilTs concluded that an additional claim against defendants existed in favor of decedent's natural father, KIRYA MITCHELL, who is wheelchair-bound and pennanentJy disabled. SEEMAN testified, inter alia, Plaintiffs ' motion to amend the complaint to add KJRYA MJTCHELL as an additional plaintiff as against defendant THE CITY OF NEW YORK was denied by an Interim Order dated May 17, 2017, since the Court lacks discretion to permit plaintiffs to amend their Notice of Claim beyond the applicable Statute of Limitations for actions arising against THE CITY (.ree General Municipal Law §50-e). 1 Page 2 of 5 [* 3] Office of the Richmond County Clerk - Page 5 Ott1c:'& O! I.he Richmon d County Clerk - Paqe 3 of 9 4/ 17/ 2019 10:19:2l AM ot 5 8/24/2017 10:09 :49 AH f ESTATE OF MITCHELL v, LEYTON. et al. ' that KIRYA MITCHELL relied upon decedent to assist him with his daily activities due to hls incapacitation. SEEMAN further stated that he no longer has the assistance and support of the decedent. According to plaintiffs, .KIRYA MITCHELL has lost the services, support and voluntary assist~e that decedent provided. Moreover, there would be no prejudice to defendants by allowing KJR YA MITCHELL to be added as a plaintiff, and to add his derivative causes of action since discovery is ongoing at this point, and depositions are still being held. In opposition, defendant GUTIERREZ contends that the motion to amend should be denied since EPTL §5-4. l requires that a wrongful death action be commenced within two years from a decedent's date of death. Here, plaintiffs waited almost three years after decedent' s death to move to add the proposed plaintifT and assert additional causes of action on his behalf. According to GUTIERREZ, plaintiffs were aware of the existence of proposed additional plaintiff KIRY A M1TCHELL and of his disability which existed since 1984 and which allegedly required the assistance of the decedent. GUTIERREZ argues that the mere fact that plaintiff SEEMAN testified at his deposition that proposed plaintiff KIRYA MITCHELL will be deprived of decedent's services is insufficient to toll the two-year wrongful death statute of limitations to allow the amendment. Moreover, GUTIERREZ contends that only the person11l representative of the estate mny bring and maintain a wrongful death action, and that the proposed plaintiff cannot maintain a separate claim for non-pecuniary loss for his son's services. Page 3 of 5 [* 4] Office of the Richmond County Clerk - Page 6 0 !!1c!'e ot the R1chmond County Clerk - Page 4 of ot 9 5 4/17/2019 10:19:2l AM 8/24 /2017 10:09:49 A.~ I ESTATE OF MITCHELL v. LEYTON, eta/, In her opposition, defendant MARIA XIMENA LEYTON adopts and incorporates by reference the arguments made by codefendant OSWALDO GUTIERREZ in his opposition to plaintiff's motion. It is well senled that a party may amend a pleading at any time with leave of court, and that such leave shall be freely given in the absence of prejudice to the nonmoving party unless the proposed amendment is plainly lacking in merit (see CPLR 3025[b]). Here, in the opinion of this Court, the deposition testimony offers sufficient proof that KIR YA MITCHELL was decedent's disabled father, and that decedent assisted the family in caring for his father. Accordingly, there is merit to the derivative claims sought to be added by proposed additional plaintiff KIRY A MITCHELL. Moreover, the derivative claim certainly relates to the same events and is based upon the same liability asserted in the original complaint, e.g., the subject motor vehicle accident and defendants' alleged negligence. ln addition, the proposed additional plaintiff is decedent's father, as such, he is not a stranger to the within litigation. Accordingly, in view of the merit to the proposed amendment, and the lack of prejudice, the motion is granted. Finally, while defendants argue that the statute of limitations serves to bar the addition of such n claim, leave to amend o pleading to assert a new cause of action is not precluded by untimeliness so long as the earlier pleading gave the ndverse party sufficient notice of the transaction out of which the new claim arises (see CPLR 203[e]). Again, in the opinion of this Court, the derivative claims sought to be added by the proposed additional plaintiff all stem from the same occurrence of which defendants were aware since the subject litigation began. Any Page 4 of 5 [* 5] Of:ice of the Richmond County Clerk - Page 7 O!!ice ot the Richmond County Clerk - Page 5 of o! 9 5 4/17/ 2 019 1 0 :19:21 AM 8/24 /2017 10:09:49 AH I . ' .. ESTATE OF MITCHELL v. LEYTON. et a/, further arguments to the contrary have been considered and rejected. Therefore, the amendments should be permitted. Accordingly, it is ORDERED that plaintiffs' motion to amend the complaint to assert a derivative cause of action on behalf of decedent's father, KlRYA MITCHELL, is granted as against defendants MARIA XIMENA LEYTON and OSWALDO GUTIERREZ, only; and it is further ORDERED that said ame{lded complaint attached to the motion is deemed served upon said defendants and that said defendants shaJI serve a responsive pleading within 20 days after the service upon them of this Order with Notice of Entry; and it is further ORDERED, that plaintiff shall file the amended complaint with the Clerk of the Court within 20 days of entry of this Order. This constitutes the decision and order of the Court. DatedJ 1.u') J'f, 2017 ENTER, HON. Til~LIOITA, Page 5 of 5 J.S.C.

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