Lynch v CS 122 W. 146th St. LLC

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Lynch v CS 122 W. 146th St. LLC 2018 NY Slip Op 30443(U) March 13, 2018 Supreme Court, New York County Docket Number: 154811/2016 Judge: Kathryn E. Freed 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. [*FILED: NEW YORK COUNTY CLERK 03/16/2018 03:01 PM 1] NYSCEF DOC. NO. 21 INDEX NO. 154811/2016 RECEIVED NYSCEF: 03/16/2018 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. KATHRYNE. FREED PART _....::.2_ Justice --------------------------------------------------------------------------------X PERRY LYNCH and NATASHA LYNCH, INDEX NO. 154811/2016 Plaintiffs, -vCS 122 WEST 146TH STREET LLC, TREASURE ASSET STORAGE LLC , INSPIRON, INC . 001 MOTION SEQ. NO. . Defendants. DECISION AND ORDER --------------------------------------------------------------------------------X The following e-filed documents, listed by NYSCEF document number 14, 15, 16, 17, 18 were read on this motion to/for AMEND CAPTION/PLEADINGS Upon the foregoing documents, it is ordered that the motion is granted without opposition. Plaintiffs Perry and Natasha Lynch move, pursuant to CPLR 3025(b), for an order permitting them to amend the caption and summons and complaint to add AK 51 I Ventures, LLC (hereinafter "the new defendant") as an additional defendant. Plaintiff also moves for leave to amend the summons and complaint to add a new cause of action against the new defendant and further requests leave to file and serve an amended summons and complaint on the new defendant. No opposition has been submitted to the mo~ion-. After a review of the motion papers, all relevant statues and case law, this Court grants the motion. 154811/2016 LYNCH, PERRY vs. CS 122 WEST 146TH STREET LLC. Motion No. 001 1 of 5 Page 1of5 [*FILED: NEW YORK COUNTY CLERK 03/16/2018 03:01 PM 2] NYSCEF DOC. NO. 21 INDEX NO. 154811/2016 RECEIVED NYSCEF: 03/16/2018 This action anses from a construction accident at 122 West l 46 1h Street, Cbunty, City, and State of New York, on February 10, 2016, in which plaintiff Perry Lynch ("plaintiff') was allegedly injured when he was caused to fall from a height ' i as a result of the negligence of, and Labor Law violations by, defendants. Plaintiff 1 I and his wife, Natasha Lynch, who asserts a derivative claim, commenced this action I o~ or about June 8, 2016. NYSCEF Doc. 1. 1 Issue was joined on November 4, 20 I 6 by service of defendants' answer. Id. Doc. 6. During the course of discovery, plaintiffs learned that AK 511 Ventures, LLC, thb proposed new defendant, was the construction manager at the work site and, thus, may have been responsible for plaintiffs injuries. Plaintiffs now seek to amend the caption and the complaint to add a new cause of action against the new defendant and submit a proposed supplemental summons and an amended verified c~mplaint I se~ting forth these new allegations. See Exhibit C. Pursuant to CPLR 3025(b ), a party may amend its pleading at any time by le~ve 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 party to amend its complaint. See Peach Parking Corp. v 345 W 40111 Street, LLC, 43 AD3d 82 (1st Dept 2007). On a 1 U01ess otherwise noted, all references are to the documents filed on NYSCEF in this matter. 154811/2016 LYNCH, PERRY vs. CS 122 WEST 146TH STREET LLC .. Motion No. 001 ' 2 of 5 Page 2 of 5 [*FILED: NEW YORK COUNTY CLERK 03/16/2018 03:01 PM 3] NYSCEF DOC. NO. 21 INDEX NO. 154811/2016 RECEIVED NYSCEF: 03/16/2018 motion for leave to amend, a plaintiff need not establish the merit of its proposed n~w allegations (see Lucinda v Mancuso, 49 AD3d 220, 227 [ I51 Dept 2008]), but must show that the proffered amendment is not palpably insufficient and not clearly devoid of merit. See Pier 59 Studios, L.P. v Chelsea Piers, L.P., 40 AD3d 363, 366 (ist Dept 2007); MBIA Ins. Corp. v Greystone & Co., Inc., 74 AD3d 499 (I5 1 Dept 2010). Here, plaintiffs have established that the claims against the new defendant have a colorable basis (see NAB Construction Corp. v Metropolitan Transportation Authority, 167 AD2d 301 [ I5 1 Dept 1990]) through counsel's representation, under oath, that the new defendant may have been responsible for the plaintiffs injury and that it is necessary to add the said party to protect plaintiffs' rights. The absence of ai:iy prejudice to the new defendant is evident from its' failure to oppose the instant motion despite being served with the same. Therefore, in accordance with the foregoing, it is hereby: 154811/2016 LYNCH, PERRY vs. CS 122 WEST 146TH STREET LLC. Motion No. 001 3 of 5 Page 3 of 5 [*FILED: NEW YORK COUNTY CLERK 03/16/2018 03:01 PM 4] NYSCEF DOC. NO. 21 INDEX NO. 154811/2016 RECEIVED NYSCEF: 03/16/2018 ORDERED that plaintiffs' motion for leave to amend the summons and complaint to add AK 511 Ventures, LLC as an additional defendant is granted; and it is further, ORDERED that, within 20 days of the entry of this order, plaintiffs' counsel shall serve a copy of this order with notice of entry upon all parties and upon the County Clerk (Room 1418) and the Clerk of the Trial Support Office (Room 158) ' and the Clerks are directed to mark the court's records to reflect the additional party; and it is further, ORDERED that the amended summons and complaint, in the proposed form annexed to the moving papers as Exhibit C (NYSCEF Doc. 18), shall be deemed served upon service of a copy of this order with notice of entry upon all parties who have appeared in the a~tion; and it is further, ORDERED that an amended summons and complaint, in the form annexed to the motion papers, shall be served, in accordance with the CPLR, on AK 511 Ventures, LLC, the newly added defendant in this action, within 30 days after service of a copy of this order with notice of entry; and it is further, 154811/2016 LYNCH, PERRY vs. CS 122 WEST 146TH STREET LLC. Motion No. 001 4 of 5 Page 4 of 5 [*FILED: NEW YORK COUNTY CLERK 03/16/2018 03:01 PM 5] NYSCEF DOC. NO. 21 INDEX NO. 154811/2016 RECEIVED NYSCEF: 03/16/2018 ORDERED that the action shall hereinafter bear the following caption: SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ---~-------------------------------------------------------------------)( PERRY LYNCH and NATASHA LYNCH, Plaintiffs, -againstInd. No. 154811/2016 CSS 122 WEST l 46n-1 STREET, LLC, TRESURE ASSET STORAGE LLC, INSPIRON, INC. and AK 511 VENTURES, LLC, Defendants. -----------------------------------------------------------------------)( And it is further, ORDERED that this constitutes the decision and order of this Court. 3/13/2018 DATE CHECK ONE: CASE DISPOSED GRANTED D NON-FINAL DISPOSITION DENIED GRANTED IN PART APPLICATION: SETTLE ORDER SUBMIT ORDER CHECK IF APPROPRIATE: DO NOT POST FIDUCIARY APPOINTMENT 154811/2016 LYNCH, PERRY vs. CS 122 WEST 146TH STREET LLC. Motion No. 001 5 of 5 D D OTHER REFERENCE Page 5 of 5

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