Lappin v Barbera Homes, Inc.

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Lappin v Barbera Homes, Inc. 2018 NY Slip Op 33461(U) August 21, 2018 Supreme Court, Albany County Docket Number: 900379-2016 Judge: David A. Weinstein 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: 1] ·' ALBANY COUNTY CLERK 08/29/2018 12:07 PM INDEX NO. 900379/2016 NYSCEF DOC. NO. 66 RECEIVED NYSCEF: 08/29/2018 STATE OF NEW YORK SUPREME COURT COUNTY OF ALBANY DANIEL T. LAPPIN, Plaintiff, DECISION & ORDER Index No.: 900379-2016 RJI No.: 01-16-123116 -against- BARBERA HOMES, INC., T.W. CONTRACTING, INC. and THOMAS WENDELL, JR., Defendants. (Supreme Court, Albany County, All Purpose Term) Appearances: Napierski, Vandenburgh, Napierski & O'Connor, LLP Attorneys for Plaintiff By: David C. White, Esq. 296 Washington Avenue Ext., Suite 3 Albany, New York 12203 . . Smith Dominelli & Guetti LLC Attorneys for Defendants T. W. Contracting, Inc. and Thomas Wendell, Jr. By: Jay A. Smith, Esq. 449 New Karner Road Albany, New York 12205 ·David A. Weinstein, J.: Tlie motion before me arises out of a suit brought by plaintiff Daniel Lappin against · defendants Barbera Homes, Inc. ("Barbera Homes" or "BH"); T.W. \C.bntr~ctl~g, Inc. ("TW") Thomas Wendell, jr., for ~d injurie~ he allegedly suffered on March 2s}, 2013 when an, up:,s.¢cured. \'. 1 1 -. ~ ' ' . ' • i board fell on his head. The complaint sets forth claims under Labo~ L~W §§. 2QO, 24;0(1) arid· .. :; :_:~~ ~ --~ ~-\i}. . . - ·: ·. . 241 (6) and for common law negligence. According to the complaint, ·on the date of the accident, . \ ... ,. >' . Lappin was employed by John D. Marcella & Sons Appliances, Inc.,-which was performing work 1 1 of 9 [*FILED: 2] ALBANY COUNTY CLERK 08/29/2018 12:07 PM NYSCEF DOC. NO. 66 INDEX NO. 900379/2016 RECEIVED NYSCEF: 08/29/2018 for defendants at 12 Mulberry Drive in Colonie, New York, as part of a development known as . Parkside at the Crossings. The complaint avers that the location of the fall was oWlled by defendant Barbera Homes, which also served as a contractor for the work being performed there (Comp!. ifif 4-5). BH served an answer denying ownership (BH Answer, if 4), and its counsel represented to plaintiffs attorney-that it was not a proper party to this action, as the work at issue was performed pursuant to a contract between defendant TW and a different corporation, Parkside at the Crossings, Inc. ("Parkside"). Thereafter, in December 2016, plaintiff moved to amend the summons to include Parkside as a defendant pursuant to CPLR 305(c) and 2001. In the alternative, Lappin sought leave to amend the complaint to add Parkside as a defendant pursuant to CPLR 3025. Barbera H,omes, in turn, cross-moved to dismiss the complaint on the ground that it was neither an owner, nor a contractor in relation to the property at issue and; therefore, could not be held liable under Labor Law§§ 200, 240(1) or 241(6). By Decision and Order dated March 20, 2017 ("Mar 20 D&O"), I concluded that plaintiff failed to show a basis to add Parkside as a defendant under CPLR 305(c) and 2001 (Mar 20 D&O at 3-5). Nor did I find that Lappin adduced sufficient evidence to warrant granting leave to amend the complaint pursuant to CPLR 3025 (id at 5-. 7). Finally, I~enied BH's cross-motion aft~r determining that plaintiffs allegations were sufficient to survive a CPLR 3211 motion (id at 7-9). By his present motion, plaintiff seeks an order pursuant to CPLR 2001 permitting him to amend the complaint to correct the location of the incident to 9 Mulberry Drive, Colonie. 1 In this regard, plaintiffs counsel states that the proposed amendment constitutes nothing more than the 1 By letter dated April 18, 2018, Barbera Homes notified the Court that it does not oppose plaintiff's motion. 2 3 of 9 [*FILED: 3] ALBANY COUNTY CLERK 08/29/2018 12:07 PM NYSCEF DOC. NO. 66 INDEX NO. 900379/2016 RECEIVED NYSCEF: 08/29/2018 correction of a minor mistake that does not impact the substantial rights of any party in this action. Alternatively, Lappin seeks the same relief under CPLR 3025(b) and 203(f), arguing that the proposed amendment is meritorious, defendants' involvement in these claims remains -,. unchanged and defendants will suffer no prejudice as a result of the amending of the complaint. Plaintiff supports his application with the affidavit of counsel and various exhibits. These include, in,ter alia, a proposed amended summons and complaint; building permits for both addresses; the certificate of occupancy for 9 Mulberry; an overhead map of the two properties, which show that they are located across the street from one another; work orders from Lappin' s employer pertaimng to 9 Mulberry; and a workers' compensation report apparently prepared by John D. Marcella & Sons Appliances indicating that the incident occurred at 9 Mulberry Drive. 1 In addition, Lappin submitted the deposition transcript of Frank B arbera, who testified that the property located at 12 Mulberry did not exist on the date of plaintiffs accident (White Aff, Ex E at 20). Plaintiffs counsel a!so attests that during the course qf discovery, he learned that the building permit for 12 Mulberry was not issued until nearly a year after the accident occurred (White Aff, ifif 10-12). TW and Wendell (collectively "defendants") submitted papers in opposition to the motion. They argue that the proposed amendment is "substantial" and "highly prejudicial" because drfendants should be able to rely on the plaintiffs written discovery and deposition testimony concerning the location of the accident (Smith Aff, ifif 4 & 16). In the same regard, defendants claim that they have no information as to the layout of 9 Mulberry Drive and that the record lacks evidentiary proof substantiating Lappin's new allegations as to the locatibn of the incident (id ifif 11-12, 17). They finally assert that plaintiff did not provide a satisfactory excuse for the delay, or any explanation as to why his prior testimony was in error (id. . 3 4 of 9 ifif 13 & 18) . .. [*FILED: 4] ALBANY COUNTY CLERK 08/29/2018 12:07 PM NYSCEF DOC. NO. 66 INDEX NO. 900379/2016 RECEIVED NYSCEF: 08/29/2018 In a reply submission, Lappin points out that discovery has yet to conclude (White Reply Aff., ifif 3 & 9). He also maintains that the amendment will not result in any prejudice to defendants because the facts underlying his claim- i.e. Thomas Wendell, Jr. dropped a board on· his head at Parkside on March 28, 2013 - have not changed (White Reply Aff, ifif 10 & 14). Discussion I turn, first, to Lappin's request for relief under CPLR 3025(b), which provides: A party may amend his or her pleading ... , ·at any time by leave of court or by stipulation of all parties. Leave shall be freely given upon such terms as may be just including the granting of costs and continuances. Any motion to amend or supplement pleadings shall be accompanied by the proposed amended or supplemental pleading clearly showing the changes or additions to be made to the pleading. Generally, leave to amend a pleading is "freely given absent prejudice or surprise resulting directly from the delay" (Colucci v Canastra, 130 AD3d 1268, 1270 [3d Dept 2015] [internal quotation and citation om~tted]; see also Cortes v Jing Jeng Hang, 143 AJ)3d 854, 854855 [2d Dept 2016] ["party opposing leave to amend must overcome a heavy presuinption of validity in favor of permitting the amendment" (i~temal quotation marks and citations omitted)]). 2 Moreover, "[l]ateness alone is not a barrier to the amendment" (Carducci v Bensimon, 115 .AD3d 694, 695 [2d Dept 2014]; see also Edenwald Contr. Co. v City ofNew . York, 60 :NY2d 957, 959 [1983]). 2 The Appellate Division, Third Department "previously adhered to a rule requiring the proponent of a motion for leave to amend a pleading to make a 'sufficient evidentiary showing to support the proposed claim'" (NYAHSA Servs., Inc., Self-Ins. Trust v People Care Inc., 156 AD3d 99, 101-102 [3d Dept 2017], quoting Cowsert v . Macy's E., Inc., 74 AD3d 1444, 1445 [3d Dept 2010]). The Third Department recently, however, "depart[ed] from that line of authority and follow[ed] the lead of the other three Departments, ... hold[ing] that '[n]o evidentiary showing of merit is required under CPLR 3025(b)"' (id at 102, quoting Lucido v Mancuso, 49.AD3d 220; 229 [2d . Dept 2008]). ( 4 5 of 9 [*FILED: 5] ALBANY COUNTY CLERK 08/29/2018 12:07 PM NYSCEF DOC. NO. 66 INDEX NO. 900379/2016 RECEIVED NYSCEF: 08/29/2018 In my view, plaintiff adduces sufficient evidence to meet this standard. Indeed, in Vidal v Claremont 99 Wall, LLC (124 AD3d 767 [2d Dept 2015]), the Appellate Division, Second Department recently ·determined that leave to amend was appropriate under strikingly similar circumstances to those before me. In Vidal, supra, the plaintiff brought suit for injuries he sustained while working as a. drywall finisher/painter during the construction of a T-Mobile store when a scaffold he was standing on coll~psed, ca~sing him to fall several feet to the floor (id at 767). Both plaintiffs. complaint and bill of particulars stated that the subject accident occurred at 99 Wall Street in Manhattan. During the course of discovery, however, it was disclosed that the incident did not occur at the 99 Wall Street premises, but rather at another building where a T-Mobile store was being constructed l,ocated at 125 Maiden Lane (id). Under.the circumstances, the Second I . ' Department found that the proposed amendment was neither palpably insufficient nor patently devoid of merit and that T-Mobile failed to establish prejudice (id at 768). To this end, the Court noted: ,;With minimal effort upon receiving a complaint regarding the construction of a . . store in downtown Manhattan, T-Mobile could have ascertained the location of the subject accident" (id.). Nor was the Court persuaded by counsel's averment of prejudice in the absence of any evidence that T-Mobile was impeded in investigating plaintiffs claim, or that it undertook an investigation at the wrong site (id.). Likewise, defendants cannot show that they will be prejudiced or surprised here. The proposed amendment does not assert a new cause qf action or add a new theory of liability. . Plaintiff, instead, only seeks to correct the address of the premises at which his alleged injury occurred and defendants had timely notice of the underlying claim. As in Vida!, defendants could have determined the true location of the incident with "minimal effort" following receipt of 5 6 of 9 [*FILED: 6] ALBANY COUNTY CLERK 08/29/2018 12:07 PM NYSCEF DOC. NO. 66 INDEX NO. 900379/2016 RECEIVED NYSCEF: 08/29/2018 Lappin's complaint and bill of particulars. Moreover, defendants' claim that further discovery is warranted relative to the layout of 9 Mulberry Drive does not constitute prejudice sufficient to justify the denial of a motion to amend the complaint (see Smith ~Haggerty, 16 AD3d 967, 968 [3d Dept 2005] ["defendants' claim is insufficient to demonstrate that they were hindered in the preparation of their case or were prevented from talcing some measure in support of their position" (internal quotation marks and citation omitted)]; Rutz v Kellum, 144 AD2d 10 I 7, 1017 [4thDept 1988]). Inasmuch as discovery is still in progress, defendants are in a position to obtain any material and relevant information about the residence situated at 9 Mulberry Drive in order to prepare an adequate defense (see e.g. Frankart Furniture Staten Is. v Forest Mall Assoc., 159 Ab2d 322, 323 [1st Dept 1990]). Given the foregoing, I need ri.ot address the branch of plaintiffs motion seeking the same relief pursuant to CPLR 2001,. · Accordingly, it is hen:;by ORDERED that plaintiffs motion seeking leavr~: to amend the complaint pursuant to CPLR 3025(b) is granted, as outlined above; and it is further ORDERED that the parties appe~ for the previously scheduled conference before the Court on Friday, Septemb'>';r 7, 2orn at 10:30 a.m. at 15') State Street, Albany, NY for the : purpose qf setting a schedule for any further discovery and addressing Such other matters .as may be appropi;iate. This constitutes the Decision & Order of the Court. This Decision & Order is b~iiig transmitted to the plaintiff for filing and service. The signing of this Decision & Order shall not I.· I· ·~ : constitute entry or filing under CPliR Rule 2220, and counsel is not relieved from the applicable provisions of that Rule respecting f'.Iing, entry and Notice of Entry. 6 ; ,.' 8 of 9 [*FILED: 7] ' ,._ ALBANY COUNTY CLERK 08/29/2018 12:07 PM NYSCEF DOC. NO. 66 INDEX NO. 900379/2016 RECEIVED NYSCEF: 08/29/2018 ENTER. bated: Albany, New York August 21, 2018 David A. Weinstein Acting Supreme Court Justice Papers Considered: 1. Notice of Motion, dated April 12, 2018; Affidavit of David C. White, Esq., sworn to April 12, 2018, with annexed exhibits; 2. Letter from Chelsea E. Manocchi, Esq. addressed to Hon. David A. Weinstein, dated April 18, 2018; 3. Affirmation of Jay A. Smith, Esq. in Opposition, dated.May, 10, 2018, with annexed exhibits; and 4. Reply Affirmation of David C. White, Esq. in Support of Motion to Amend Complaint, dated May 17, 2018, with annexed exhibits; Reply Memorandum of Law in Further Support of Plaintiffs Motion to Amend the Complaint, dated May 17, 2018. '; 7 9 of 9

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