Toribio v 575 Broadway LLC

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Toribio v 575 Broadway LLC 2018 NY Slip Op 32979(U) November 21, 2018 Supreme Court, New York County Docket Number: 150457/2017 Judge: Robert R. Reed 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] INDEX NO. 150457/2017 NYSCEF DOC. NO. 132 RECEIVED NYSCEF: 11/28/2018 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: l.A.S. PART 43 ------------------------------------------------------------------------------x JUAN TORIBIO and YULCARIA TORIBIO, DECISION AND ORDER Plaintiffs, Index No. 150457/2017 - against 575 BROADWAY LLC, 575 BROADWAY ASSOCIATES, L.P., Defendants. ------------------------------------------------------------------------------x 575 BROADWAY LLC and 575 BROADWAY ASSOCIATES, L.P, Third-Party Index No. 595606/2017 Defendants/Third-Party Plaintiffs, - against WEST NEW YORK RESTORATION OF CT, INC. and ALERT ACTION CONTRACTING, INC. Third-Party Defendants. ------------------------------------------------------------------------------x ROBERT R. REED, J.: In motion sequence no. 002, plaintiffs move, pursuant to CPLR 3025 (b), for leave to serve and file an amended complaint to assert direct claims against third-party defendant West New York Restoration of CT, Inc. (West) and to amend the caption accordingly. BACKGROUND Plaintiffs commenced this Labor Law action against defendants 575 Broadway LLC and 575 Broadway Associates, L.P. (together, 575 Broadway) to recover damages for personal injuries. sustained by plaintiff Juan Toribio (Toribio) on December 8, 2014 (affirmation of plaintiff's counsel, exhibit 2 [complaint],~ 34). The incident occurred in a building undergoing construction owned by 575 Broadway Associates, L.P. at 575 Broadway, New York, New York (NY St Cts Elec Filing [NYSCEF] Doc No. 5 [575 Broadway answer],~ 2 of 7 3]). 575 Broadway brought a third- [* 2] INDEX NO. 150457/2017 NYSCEF DOC. NO. 132 RECEIVED NYSCEF: 11/28/2018 party action against West, its general contractor, and Alert, West's subcontractor and Toribio's employer, for indemnification and for breach of contract for their failure to procure insurance (NYSCEF Doc No. 13). West has served an answer to the third-party complaint (NYSCEF Doc No. 54). Alert has moved separately for pre-answer dismissal of the third-party complaint and the cross-claims against it (NYSCEF Doc Nos. 59 and 106). As plaintiffs did not amend their complaint within 20 days of service of West's answer (see CPLR 1009), plaintiffs now move for leave of court to add West as a direct defendant. DISCUSSION It is well settled that a motion for leave to amend the pleadings should be freely granted unless there is prejudice or surprise from the delay or if the amendment is "palpably insufficient or patently devoid of merit" (see JPMorgan Chase Bank, NA. v Low Cost Bearings NY Inc., 107 AD3d 643, 644 [1st Dept 2013], quoting MBIA Ins. Corp. v Greystone & Co., Inc., 74 AD3d 499, 499 [1st Dept 2010]). The court must examine the sufficiency of the merits of the proposed amendment and is not required to accept plaintiffs allegations as true (see Bag Bag v Alcobi, 129 AD3d 649, 649 [1st Dept 2015]). A party moving to amend its pleadings need not prove the facts alleged (see Daniels v Empire-Orr, Inc., 151 AD2d 370, 371 [1st Dept 1989] [citations omitted]), but must tender an affidavit of merit or an offer of evidence similar to that used to support a motion for summary judgment (see Bag Bag, 129 AD3d at 649 [1st Dept 2016]). A party opposing the motion bears a heavy burden of showing "prejudice or surprise resulting directly from the delay" (McGhee v Odell, 96 AD3d 449, 450 [1st Dept 2012] [internal quotation marks and citation omitted]), or demonstrating that the facts as alleged are "obviously unreliable or insufficient to support the amendment" (see Peach Parking Corp. v 346 W 40th St., LLC, 42 AD3d 82, 86 [1st Dept 2007], citing Daniels, 151 AD3d at 371]). In support of the motion, plaintiffs proffer an affidavit from Toribio, an attorney's affirmation, and a proposed supplemental summons and amended verified complaint. Although 2 3 of 7 [* 3] INDEX NO. 150457/2017 NYSCEF DOC. NO. 132 RECEIVED NYSCEF: 11/28/2018 Toribio averred that he was injured while working at 575 Broadway, he failed to refer to West in his affidavit (affirmation of plaintiffs counsel, exhibit 1 [Toribio aft] at 1-2). Counsel's assertion that, "[t]hrough investigation, it was determined that West ... was engaged at the subject jobsite and may be liable for the severe injuries sustained by plaintiff' (affirmation of plaintiffs' counsel, i! 5), is not the type of "evidentiary proof ... that would be admissible on a motion for summary judgment" (Velarde v City of New York, 149 AD3d 457, 457 [1st Dept 2017]). Nevertheless, the allegations in 575 Broadway's third-party complaint and the documents annexed thereto are sufficient to demonstrate West's involvement on the project during which Toribio was injured. West opposes the application on the ground that the amendment is not timely under the three-year statute of limitations applicable to personal injury actions (see CPLR 214). Plaintiffs allege that Toribio was injured on December 18, 2014, but they did not file the instant motion until January 31, 2018, thereby missing the statutory limitations period by 44 days (West memorandum of law at 1). West also contends that plaintiffs cannot salvage their untimely claims under the relation back doctrine because West's identity was known to them. Submitted with the affidavit of West's president, Alfred Gallicchio (Gallicchio), is a facsimile cover sheet from Sobo & Sobo L.L.P. (Sobo) dated August 3, 2016 (Gallichio aff, exhibit 1 at 1), along with two nearly identical letters, both dated July 29, 2016, addressed to West. Significantly, both letters read, in part, that Sobo "represents Juan Toribio for serious injuries that he sustained while on the premises of 575 Broadway, New York, New York on December 18, 2014" (id. at 2-3). Sobo also advised West to transmit the letters to West's insurance carrier and to "maintain any video, photographs or other evidence that may pertain to this incident as critical to potential civil litigation" (id.) Plaintiffs in reply appear to concede that the statute of limitations has lapsed, but contend that the relation back doctrine permits them to assert direct claims against West. 1 1 The court observes that plaintiffs did not raise the timeliness of their claims or the relation back doctrine until their reply. 3 4 of 7 [* 4] INDEX NO. 150457/2017 NYSCEF DOC. NO. 132 RECEIVED NYSCEF: 11/28/2018 The relation back doctrine permits a plaintiff to correct a pleading error by adding a new claim or party after the statute of limitations has expired upon a showing that: "(l) both claims arose out of [the] same conduct, transaction or occurrence, (2) the new party is 'united in interest' with the original defendant, and by reason of that relationship can be charged with such notice of the institution of the action that he will not be prejudiced in maintaining his defense on the merits, and (3) the new party knew or should have known that, but for an excusable mistake by the plaintiff as to the identity of the proper parties, the action would have been brought against him as well" (Buran v Coupal, 87 NY2d 173, 178 [1995], quoting Brock v Bua, 83 AD2d 61, 69 [2d Dept 1981]). It is the plaintiffs burden to establish the doctrine's applicability (see Anderson v Montefiore Med. Ctr., 41 AD3d 105, 107 [1st Dept 2007]). As applied to this action, it is evident that plaintiffs' claims against 575 Broadway and West arose out of the same construction accident. Plaintiffs, though, failed to meet the second and third elements. Parties are "united in interest" when there is "some relationship between the parties giving rise to vicarious liability of one for the conduct of the other" (see Valmon v 4 M & M Corp., 291 AD2d 343, 344 [1st Dept 2002], lv denied 98 NY2d 611 [2002], citing Vanderburg v Broman, 231 AD2d 146, 147 [1st Dept 1997] [discussing control as the notion underlying the doctrine of vicarious liability]). "Their interests must be 'such that they stand or fall together and that judgment against one will similarly affect the other"' (Lord Day & Lord, Barrett, Smith v Broadwall Mgmt. Corp., 301AD2d362, 363 [1st Dept 2003], quoting Connell v Hayden, 83 AD2d 30, 40 [2d Dept 1981 ]). There is no unity of interest among the parties "if there is a possibility that the new defendants may have a defense unavailable to the original defendants" (see Higgins v City ofNew York, 144 AD3d 511, 513 [1st Dept 2016]). The complaint asserts claims for common-law negligence and violations of Labor Law§§ 200, 240, and 241 (6). It is well settled that Labor Law§§ 240 and 241 (6) impose nondelegable duties upon owners and general contractors to provide those working on a construction site with 4 5 of 7 [* 5] INDEX NO. 150457/2017 NYSCEF DOC. NO. 132 RECEIVED NYSCEF: 11/28/2018 proper protection and that owners and general contractors may be held vicariously liable for a violation of those statutes (see Rizzuto v L.A. Wenger Contr. Co., 91 NY2d 343, 350 [1998] [discussing vicarious liability under Labor Law§ 241 (6)]; Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 500 [1993]). Hence, West and 575 Broadway are arguably united in interest as to those two causes of action. However, with respect to the common-law negligence and Labor Law § 200 claims, 575 Broadway's and West's interests diverge. Labor Law § 200 codifies the common-law duty that an owner or general contractor provide construction workers with a safe work site (see Comes v New York State Elec. & Gas Corp., 82 NY2d 876, 877 [1993]). Claims brought under this section "fall into two broad categories: those arising from an alleged defect or dangerous condition existing on the premises and those arising from the manner in which the work was performed" (Cappabianca v Skanska USA Bldg. Inc., 99 AD3d 139, 143-144 [1st Dept 2012]). If the accident arises out of a dangerous premises condition, liability may be imposed if the defendant created the condition or failed to remedy a condition of which it had actual or constructive notice (see Mendoza v Highpoint Assoc., IX, LLC, 83 AD3d 1, 9 [1st Dept 2011]). If the accident results from the means and methods of the work, liability may be imposed only ifthe defendant supervised or controlled the injury-producing work (see Cappabianca, 99 AD3d at 144). Plaintiffs had alleged that Toribio was injured when construction material or debris fell on him (complaint~ 34). Thus, West, as the general contractor, may not share the same defense to these claims as 575 Broadway, the property owner. With respect to the third element, "New York law requires merely mistake-not excusable mistake-on the part of the litigant seeking the benefit of the [relation back] doctrine" (Buran, 87 NY2d at 176). Here, plaintiffs were under no mistaken belief as to West's identity. Plaintiffs notified West of Toribio's accident more than one year before they commenced this action, yet they failed to name West as a direct defendant. The failure to join West as a defendant is "a mistake of law, 'which is not the type of mistake contemplated by the relation-back doctrine"' 5 6 of 7 [* 6] INDEX NO. 150457/2017 NYSCEF DOC. NO. 132 RECEIVED NYSCEF: 11/28/2018 (Matter of 27th St. Block Assn. v Dormitory Auth. of State of NY, 302 AD2d 155, 165 [1st Dept 2002], quoting Matter of Brucha Mtge. Bankers Corp. v Commissioner of Labor of State of N. Y, 266 AD2d 211, 211 [2d Dept 1999], lv dismissed 94 NY2d 893 [2000]). Thus, plaintiffs' failure to name West "earlier cannot be characterized as a mistake for relation-back purposes" (Goldberg v Boatmax://, Inc., 41 AD3d 255, 256 [1st Dept 2007]; see also Davis v Sanseverino, 145 AD3d 519, 520 [1st Dept 2016]; Royce v DIG EH Hotels, LLC, 139 AD3d 567, 569 [1st Dept 2014]; Crawfordv City ofNew York, 129 AD3d 554, 555 [1st Dept 2015]; Wallach v R&J Constr. Corp., 128 AD3d 566, 566 [1st Dept 2008]). Accordingly, it is ORDERED that plaintiffs' motion for leave to amend their complaint to assert claims against third-party defendant West New York Restoration of CT, Inc. and to amend the caption to add said third-party defendant as a direct defendant is denied; and it is further ORDERED that counsel are directed to appear for a status conference in Part 43, Room 581, 111 Centre Street, on January 3, 2019, at 11 :00 a.m. Dated: November 21, 2018 ENTER: ~· J.S.C. 6 7 of 7 1{/<0F

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