Malone v Metropolitan Hosp.

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Malone v Metropolitan Hosp. 2018 NY Slip Op 31783(U) July 24, 2018 Supreme Court, New York County Docket Number: 452930/2017 Judge: George J. Silver 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 07/26/2018 11:42 AM 1] NYSCEF DOC. NO. 38 INDEX NO. 452930/2017 RECEIVED NYSCEF: 07/26/2018 SUPREME COURT OF THE STATE OF NEW YORK- NEW YORK COUNTY PART 10 PRESENT: GEORGE J. SILVER Justice EDWIN MALONE, MOTION INDEX NO. 452930/2017 Plaintiff, MOTION DATE -vMOTION SEQ. NO. _QQl_ METROPOLITAN HOSPITAL and NYC HEALTH AND HOSPITAL CORPORATION, Defendants. Cross-Motion: D Yes I No Plaintiff EDWIN MALONE, ("plaintiff') moves, by order to show cause, and pursuant to CPLR § 3025, for leave to: (1) amend the caption to add CROTHALL HEALTHCARE INC. as a defendant in this action on the grounds that justice so requires; (2) amend the Summons and Complaint to include plaintiffs slip and fall claims; (3) amend the Summons and Complaint to reflect the same; and (4) deem plaintiffs Supplemental Summons and Amended Verified Complaint as having been served nunc pro tune. Defendants METROPOLITAN HOSPITAL and NYC HEALTH AND HOSPITAL CORPORATION ("defendants") fail to oppose the application. For the reasons discussed below, the motion is granted. BACKGROUND AND ARGUMENTS This action was commenced with the filing of plaintiffs Summons and Complaint on April 9, 2017. Thereafter, on March 23, 2017, plaintiff served a Supplemental Summons and Amended Complaint. In this action, plaintiff alleges that he slipped and fell at Metropolitan Hospital Center 1 2 of 5 [*FILED: NEW YORK COUNTY CLERK 07/26/2018 11:42 AM 2] NYSCEF DOC. NO. 38 INDEX NO. 452930/2017 RECEIVED NYSCEF: 07/26/2018 on May 4, 2016, and sustained senous personal injuries due to defendants' negligence, carelessness, and reckless. An order dated October 16, 2017 consolidated the instant action with another action, Edwin Malone v. Metropolitan Hospital and New York City Health and Hospitals Corporation (Index No. 22936/2017E). Plaintiff contends that because he has alleged slip and fall claims in that separate action (Index No. 22936/2017E) that are not asserted in this action, he should be permitted to amend the complaint in this action to assert the same in order to protect his interests and prevent prejudice. Plaintiff also argues that he has obtained through discovery the name and identity of an additional party who may be liable for the accident and his injuries. Specifically, plaintiff avers that Crothall Healthcare Inc. was responsible for the maintenance, repairs, upkeep, service, and care of the hospital in which the accident occurred, and therefore, the actions of Crothall Healthcare Inc. likely caused and contributed to his injuries. DISCUSSION "Leave to amend pleadings should be freely granted in the absence of prejudice or surprise to the opposing party" (Lucido v. Mancuso, 49 A.D.3d 220, 226-27 [2d Dept. 2008]; CPLR 3025[b]). "Prejudice has been defined as a special right lost in the interim, a change in position, or significant trouble or expense that could have been avoided had the original pleading contained the proposed amendment" (Ward v. City of Schenectady, 204 A.D.2d 779, 781 [3d Dept. 1994]). "A motion for leave to amend is committed to the sound discretion of the trial court" (Colon v. Citicorp Inv. Servs., 283 A.D.2d 193, 193 [1st Dept. 2001]). 2 3 of 5 [*FILED: NEW YORK COUNTY CLERK 07/26/2018 11:42 AM 3] NYSCEF DOC. NO. 38 INDEX NO. 452930/2017 RECEIVED NYSCEF: 07/26/2018 Here, because defendants failed to oppose plaintiffs motion, plaintiffs request to assert slip and fall claims and add Crothall Healthcare Inc. as an additional defendant is granted. Defendants failed to allege or demonstrate any prejudice or surprise caused by plaintiffs proposed amendment. Indeed, defendants cannot claim prejudice or surprise since they were also defendants in the separate action bearing Index No. 22936/2017E, in which plaintiff asserted slip and fall claims (Reilly v. City ofNew York, 271A.D.2d425, 426 [2d Dept. 2000] [granting plaintiff leave to amend the complaint where defendant did not oppose the motion for leave to amend on the ground relied upon by the court]; Knightv. Knight, 193 A.D.2d 416, 416 [1st Dept. 1993] [granting plaintiff leave to amend the complaint where there was no indication that the plaintiff sought leave to amend in bad faith]; Annicaro v. Structurtone, 175 A.D.2d 546, 548 [3d Dept. 1991] [granting plaintiff leave to serve amended complaint where plaintiff submitted a sufficiently compelling affidavit of merit detailing the facts surrounding his accident and plaintiff added no new facts to his complaint]). Accordingly, plaintiffs application to amend the complaint is granted. As such, it is hereby ORDERED that plaintiffs request for leave to amend the Summons and Complaint to include plaintiffs slip and fall claims is granted; and it is further ORDERED that plaintiffs request for leave to amend the Summons and Complaint to reflect the same is granted; and it is further ORDERED that plaintiffs request for leave to amend the caption to add CROTHALL HEALTHCARE INC., as a defendant is granted; and it is further ORDERED that the caption is amended as follows: 3 4 of 5 [*FILED: NEW YORK COUNTY CLERK 07/26/2018 11:42 AM 4] NYSCEF DOC. NO. 38 INDEX NO. 452930/2017 RECEIVED NYSCEF: 07/26/2018 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK Index No. 452930/2017 EDWIN MALONE, Plaintiff, -against- METROPOLITAN HOSPITAL, NYC HEALTH AND HOSPITAL CORPORATION, and CROTHALL HEALTH CARE INC., Defendants. ; and it is further ORDERED that plaintiffs Supplemental Summons and Amended Complaint is deemed as having been served nunc pro tune; and it is further ORDERED that plaintiff is directed to serve the Amended Complaint within 20 days of service of a copy of the order of this Court with notice of entry; and it is further ORDERED that the parties are directed to appear for a compliance conference on October 16, 2018 at 9:30 A.M. at 111 Centre Street, Room 1227 (Part 10) New York, New York 10013 to ensure compliance with this court's order and to further facilitate discovery. This constitutes the decision and order of the court. Dated: July 24, 2018 Check one: 0 FINAL DISPOSITION • NON-FINAL DISPOSITION 4 5 of 5

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