Landgarten v Red Hook Gardens Hous. Dev. Fund Corp.

[*1] Landgarten v Red Hook Gardens Hous. Dev. Fund Corp. 2019 NY Slip Op 51905(U) Decided on November 27, 2019 Supreme Court, Kings County Rivera, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on November 27, 2019
Supreme Court, Kings County

Kemishel Landgarten, Plaintiff,

against

Red Hook Gardens Housing Development Fund Corporation, GRENADIER REALTY CORP., PAULETTE HOLIDAY and SHINDA MANAGEMENT CORPORATION, Defendants.



506634/18



Attorneys for Plaintiff

Irwin J. Weinstein, Esq.

Burns & Harris

233 Broadway, Suite 900

New York, New York 10279

(212) 393-1000

Attorney for Defendants Paulette Holiday

Red Hook Gardens Housing Development

Grenadier Realty Corp

Connell Foley LLP

888 Seventh Avenue 9th Floor

New York NY 10106

(212) 307-3700
Francois A. Rivera, J.

Recitation in accordance with CPLR 2219 (a) of the papers considered on the notice of motion filed on September 10, 2019, by plaintiff, Kemishel Landgarten (hereinafter Landgarten), for an order pursuant to CPLR 3025 (b) permitting the plaintiff to amend the complaint to add as defendants, Carroll Garden Associations, Inc. and Red Hook Gardens Limited Partnership. The motion is unopposed.

Notice of motion

Affirmation in support

Exhibits A-H

BACKGROUND

On April 3, 2018, Landgarten commenced an action to recover damages for personal injury bearing the Index Number 506634/18 by filing a summons and complaint with the Kings County Clerk's Office (hereinafter KCCO) against Red Hook Gardens Housing Development Fund Corporation (hereinafter Red Hook Gardens HDFC), Grenadier Realty Corp (hereinafter GRC), Paulette Holiday (hereinafter Holiday), and Shinda Management Corporation (hereinafter SMC). On November 12, 2018 Red Hook Gardens HDFC filed a verified answer and the issue was joined.

Landgarten's original complaint alleged the following salient facts. On October 11, 2017 at approximately 9:00 A.M., Landgarten was in her home located at 19A Dwight Street, Brooklyn, New York (hereinafter the subject premise). Landgarten's alleged claim is for personal injuries due to a defective handrail on the interior stairway and/or steps located at the subject premises. Red Hook Gardens HDFC owns the subject premise but as a nominal owner only, with no true interest in the property. GRC offers property development, management, and sales services. Holiday is a District Manager of GRC. SMC manages and maintains the premise. Landgarten's injuries were allegedly caused by Red Hook Gardens HDFC, GRC, Holiday, and SMC's negligence to properly and adequately maintain said interior staircase and/or steps, including the handrail, upon the subject premise.

Landgarten's proposed verified amended complaint contains one hundred thirty-nine allegations of fact in support of the same causes of action asserted in the original complaint. The proposed verified amended complaint, however, reflects the addition of defendant Carroll Garden Associations, Inc. (hereinafter CGA Inc.) and sets forth, among other things, the position held by defendant CGA Inc. Landgarten alleges that CGA Inc. is the sole member of defendant Red Hook Gardens HDFC.

MOTION PAPERS

Landgarten's motion papers consist of an affirmation of counsel and eight exhibits labeled A through H. Exhibit A is the summons and complaint of Landgarten. Exhibit B is verified answer joined on behalf of Red Hook Gardens HDFC. Exhibit C is Landgarten's verified bill of particulars. Exhibit D is a copy of the Preliminary Conference Order. Exhibit E is a copy of the Compliance Conference Order. Exhibit F is a copy of Landgarten's examination before trial Transcript. Exhibit G are copies of the prior Service Requests and the Nominee agreement. Exhibit H is the proposed amended complaint by plaintiff.

There was no opposition to the motion.

LAW AND APPLICATION

By the instant motion, Landgarten now seeks an order pursuant to CPLR 3025 (b) to amend the complaint to add as defendants, Carroll Garden Associations, Inc. and Red Hook Gardens Limited Partnership, as direct defendants.

CPLR 3025 (b) provides as follows:

(b) Amendments and supplemental pleadings by leave. A party may amend his or her pleading, or supplement it by setting forth additional or subsequent transactions or occurrences, at any time by leave of court or by stipulation of all parties. Leave shall be free given upon such terms as may be just including the granting of costs and [*2]continuances. Any motion to amend or supplement pleadings clearly showing the changes or additions to be made to the pleading.

A motion for leave to serve and file a supplemental and amended summons and complaint rests within the sound discretion of the trial court. A motion to amend a complaint pursuant to CPLR 3025 (b) should be granted provided that the amendment is not palpably insufficient, does not prejudice or surprise the opposing party, and is not patently devoid of merit (Lucido v Mancuso, 49 AD3d 220, 222 [2nd Dept 2008]). In exercising this discretion, a trial court shall examine the legal sufficiency or merits of a pleading that are clear and free from doubt (Emigrant Savings Bank v Walters, 155 AD3d 829 [2nd Dept 2017]).

The burden of establishing prejudice or surprise precluding the amendment of the pleading is on the party opposing the amendment (Emigrant Savings Bank, 155 AD3d at 829). Inasmuch as the defendants have not opposed plaintiff's motion there is no claim of prejudice or surprise by the amendment.

Plaintiff submitted, among other things, a proposed amended complaint. The changes consist of the addition of CGA Inc. as a new defendant and certain allegations of fact regarding CGA Inc.'s involvement in the proposed amended complaint. The Court finds that the proposed amended complaint, on its face, is not palpably insufficient nor patently devoid of merit. Therefore, plaintiff's motion for an order granting leave to amend the complaint pursuant to CPLR 3025 (b) should be granted.

CONCLUSION

The motion of plaintiff Kemishel Landgarten for an order granting leave to amend the summons and complaint to add Carroll Garden Associations, Inc. as a defendant pursuant to CPLR 3025 (b) is granted.

The foregoing constitutes the decision and order of this Court.

Enter:

____________________________________________

J.S.C.