Joudeh v Mazzei

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Joudeh v Mazzei 2021 NY Slip Op 33004(U) December 7, 2021 Supreme Court, Richmond County Docket Number: Index No. 101096/2014 Judge: Orlando Marrazzo, Jr. 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. INDEX NO. 101096/2014 [*FILED: 1] RICHMOND COUNTY CLERK 12/08/2021 09:18 A NYSCEF DOC. NO. 90 RECEIVED NYSCEF: 12/08/2021 SUPREME COURT OF THE STATE OF NEW YORK COl/NTY OF R!Cllf\1OND: CIVIL TERM: !AS PART 26 ------------------------------------------------------------------X SAMII{ .IOUDEI L Index No. IO 1096/20 I 4 Plaintiff. Motion Seq. 05. 06 -againstJOANNE MAZZl'L SALVATORE BLANDA AND CRISTIN ClJRRY. Defendants. ORDERA"'ID DECISION ------------------------------------------------------------------X SALVATORE BLANDA AND CHRISTINE CURRY. Third-Party Plaintills. -againstSW RIAD CORP .. Third-Party Defendant. ------------------------------------------------------------------X SALV /\TORE BLANDA AND CI !RI STINE CURRY. Second Third-Party Plaintills. -againstS\\' JOANN'S DEi.I INC .. Second Third-Party Defendant. ------------------------------------------------------------------X The follo\\ing papers. numhcrcd EF3 to EFI 8. IT62 to EF64. and EF74 to EF87. read on Defendants·. SALV /\TORE BLANDA ("Blanda'·) and CRISTIN CURRY c·curry") (together. "Defendants"), motion to strike plaintiffs amended verified hill of particulars. and for summary judgment in their favoring dismissing the complaint pursuant to CPI .R 3212 (mot. seq. 05). as \\ell as plaintilrs cross-motion for lea\'c to amend his complaint and hill of particulars. pursuant to CPLR ]025. and to deny defendants· motion to strike his amended hill of particulars and for summary judgment (mot. seq. 06). have heen considered along \\ith the points raised by the parties during oral argument. 1 of 5 INDEX NO. 101096/2014 [*FILED: 2] RICHMOND COUNTY CLERK 12/08/2021 09:18 AM NYSCEF DOC. NO. 90 RECEIVED NYSCEF: 12/08/2021 Papers Filed Papers Numbered Notice of Motion -Aflidmits (Affirmations)-- Exhibits (Seq. 05) _ _ __ Notice of Cross-Motion - Affida\its (Affirmations) - Exhibits (Seq. 06) Answering Affidavit (Alfamation) - Lxhibits_ __________ _ Reply Artidavit (Affirmation) - Exhibits _ _ _ _ _ _ _ __ EF7-l-EF75 EF3-EFl8 EF62-FF64 EF76-EF87 lJpon the foregoing papers it is ordered that the defendants· motion and the plaintitrs cross-motion arc determined as follows: Plaintiff in this negligence action seeks damages for personal injuries sustained on December 17. 2013. \\hen it is alleged he slipped and fell on snow/ice at the defendants· prcn1iscs located at 13 73 Bay Street. Richmond. NY (""the premises""). The Parties· Arguments Plaintiff alleged in his complaint and amended complaint that his accident occurred on the sidrnalk adjacent to the premises. Plaintif'J's hill of particulars c·BP"") alleges the accident occurred in front of the premises. Plaintiff subsequently testified at his examination before trial (""EBT'") that his accident occurred in the parking lot at the rear or the premises. Shortly after his EBT and the first Un of defendant. Curry. the plaintiff served an amended BP. in which he alleged. inter uliu. that his accident occurred in the parking lot at the back of the premises. Defendants rejected plaintifrs amended BP and thcrcaticr moved for an order striking the same. and for summary judgment. alleging entitlement thereto because the amended BP contradicted the complaint and amended complaint, which in turn contradicted plaintiff's testimony. Defendants argued to strike the amended BP. claiming prejudice by having to accept the same. because of the plaintitrs delay in serving it. and because the statute oflimitations (""SOL'") had run. Plaintiff then cross-moved ltir an order granting him lca\c to amend his complaint and. upon being granted leave. to deem the same, along with the amended BP, validly served upon defendants 111111c pro lune. and denying defendants· motion. In so doing, plaintiff argued that the proposed amendment would cause defendants no prejudice since the changed location of plaintiffs accident remains on defendants' same premises. plaintiffs theory of liability remains unchanged. and defendants \\CIT apprised of the transactions and occurrences giving rise to the claim by the original complaint and amended complaint. Plaintiff also argued he promptly sought to amend his BP following his 1:BT and. while the proposed change came several years following the commencement of the action. discmery was in its infancy and the note of issue has not been filed. Plaintiff further argued the proposed amendment \\as supported by merit \·ia plaintiffs undisputed testimony concerning the location o!' his accident. Finally. plaintiff argued that. if the proposed amendment were permitted. defendants· application for summary judgment is rendered moot. In opposing plaintiffs cross-motion, defendants argued plaintiffs proposed amendment is dernid of merit because the proposed change is sought alicr the expiration of the SOL. and defendants are prejudiced in their ability to investigate the accident due to the death of a knmrn \vitncss in 2016 or 2017. They also reiterated their argument of entitlement to summary judgment since the allegations in plaintiffs pleadings did not match plaintitrs testimony. 2 2 of 5 INDEX NO. 101096/2014 [*FILED: 3] RICHMOND COUNTY CLERK 12/08/2021 09:18 A NYSCEF DOC. NO. 90 RECEIVED NYSCEF: 12/08/2021 On reply. plaintiff argued that. alter defendants tiled their motion. four additional party E11Ts had taken place. and both. plaintiff and defendant. Curry. appeared for additional l'lrls. Plaintiff further argued that the passing of the SOL did not render his proposed amended complaint and BP dcrnid of merit: rather. plaintiffs undisputed testimony supported the merit thereof. MorcoYer. plaintiff argued that defendants· argument or prejudice is feigned and/or scll~imposcd as defendants ha\'e been aware of the correct location of plaintiffs accident prior to the lawsuit being tiled. defendants knew to question the now allegedly deceased witness well prior to his death. and because plaintifrs theory of liability remains unchanged. Discussion It is undisputed that the location ofplaintitrs accident. as tcstilied to during his EI\T. is a different location on defendants· premises than is alleged in his complaint. amended complaint. and BP. Thus. defendants· contention that the eYidencc adduced during discoYcry docs not match plainti tr s pleadings is correct. It is also true that plainti fr s application for leaYe to amend his pleadings was lirst made alter the expiration of the SOL pertaining to this case. I lowever. the mere fact that the S( )I. has run docs not by itself render plainti tr s proposed amended complaint and BP palpably insufficient or clearly devoid of merit. Sec J'ida/ r ( °/uremo11t 99 Wall. UC. 12--1 A.D.3d 767 (2d lkp"t 2015). It is fundamental that --11Jcavc to amend the pleadings ·shall be frecl, giYen· absent prejudice or surprise resulting direct!, from the delay ... Mc( 'askey, !Jm·ies and Assoc.1· .. Inc. ,..\°e1r l'ork ( 'i1_1· !!ea/th & llo.1p.1. ( 'orp .. 59 N.Y.2d 755. 757 ( 1983 ). While a motion to amend should be made at the earliest possible moment to avoid prejudice. such motions can be made as late as the eve of trial or on appeal in the abscncc of significant prejudice (Burack r Bu rack. 122 A.D.2d IO I 12d Dep ·1 1986 I). For a motion to amend a pleading to be denied. prejudice must be significant (Ldemrn/d Conrracting Co .. Inc. ,·. ( 'ity of ,\'e11· lork, 60 N.Y.2d 957 [1983]). \\ill not be presumed (Santiago r Co11111y o/S11/folk. 280 A.D.2d 59--112d Dcp"t 2001 I). and the burden of prool" to establish prejudice explicitly lies with the party opposing the amendment (l.e1111011 , . 56 11, and !'ark /,\T) O,rner. I.I.(·. 199 A.D.3d (,--1 [2d Dcp"t 2021 [). Morco\'cr. mere lateness vvithout signilicant prejudice is insufficient to deny the relief of a motion to amend a pleading (J.:rako\'.\ki ,·. Stm-ros .·/1.,ociatn. I.I.(·. 173 A.D ..~d 11--16 [2d Dcp ·1 20191)- and. C\ en where a delay in amending is --inordinate:· this docs not inherently preclude amendment (Seda,, Xe,.- l'ork ( 'ity I lousing Authority. 181 A.D.2d --169 [l st Dep't 1992 j). Simply put, ··1 al party opposing lca\·c to amend ·must O\ crcome a heavy presumption of validity in favor of [permitting amendment] .... ( ·orte, ,. Jing Jeng lla11g. 1--13 A.D.3d 85--1 (2d lkp"t 201 (,). Where a party opposing an application fr1r lca\c to amend a pleading argues prejudice. hut presents no c\'idencc as to vv·hat. if anv. imestigation it undertook and. therefore. ho\\ its investigation \\as hindered by the proposed amendment, such a party t,1ils to adequately demonstrate prejudice. Sec. 1'idal \'. ( ·1are111011t 99 Wall, I.I.(·. 124 A.D.3d 767 (2d Dcp ·1 2015): Gon::a/e:: r. 1\°n\' York ('ity I lousing A111/111rit_1-. 107 A.D.3d --171 (]' 1 Dcp"t 2013). It must also he considered where the condition complained ofis transient in nature. such as snow and ice as is the case here. this inhcrcntlv renders a defendant"s abilitv to investii::atc minimal follovv inu ev·cn a , short passage of time. c•;J.\ ,. ( 'ity o/l'eek.,ki/1. 297 A.i).2d 735 (2d Dep"t 2002). 3 of 5 INDEX NO. 101096/2014 [*FILED: 4] RICHMOND COUNTY CLERK 12/08/2021 09:18 A NYSCEF DOC. NO. 90 RECEIVED NYSCEF: 12/08/2021 I lcrc. plaintiff has demonstrated that his proposed amendment to his complaint and Ill' is not being made in had faith. and seeks to correct the location of his accident. which remains on defendants· premises. Defendants. ,,·hilc arguing prejudice. ha,e failed to demonstrate what specific efforts they undertook to imcstigatc the accident and therefore ho\\ their imcstigation was hindered. It also appears that defendants could hcl\ e ascertained the c01Tcct location of plaintitrs accident \\ith minimal effort (sec /'idol, .. C'lure1110111 99 ll'a/1. UJ ·.supra.at 768). to the extcnt they were not explicitly aware of it before this action was tiled. Defendant. lllanda. testified to having awareness of the plaintitrs accident,, ithin 2-3 ,,eeks thcrcatier. and I\ as aware that the now apparently deceased witness . .John l.o,ctro. had kno,,·ledgc pertaining to the accident and the location \Yherc it occurred within the same timcframe. I Im, ever. defendants foiled to question this witness. who lived on defendants' premises. during the years prior to his death and after this litigation was commenced. Defendant, Curry. also wrote notes on a copy of the applicable lease indicating the correct location of the plaintifl's accident. \\hich ,,ere in defendants· possession no later than October. 20 l 5. and likely earlier. and which information she learned from a conversation between defendant. Blanda. and second third-party defendant. SW .JOANN'S DFI.l INC.'s. witness. Wac! .loudeh. Plaintiff also worked in the same deli where Wac! Joudch worked on defendants' premises. and they did not question him about his accident hcfi.1re this action was commenced despite being able to. Defendants alsn l:1ilcd to timely make any clTorts to dcpnsc the EMTs ,,ho fi.iund the plaintiff where he fdl despite being in possession of the ambulance call report. which listed the location of plaintiffs accident. since 20 I 5 1• Morcll\er. the defendants ncYcr presented any efforts sh(m ing theY sought to depose Kim. the employee of the deli located on their premises. ,,ho ,,as apparently present when plaintifrs accident occurred. limier these' circumstances. it cannot be said that any prejudice to defendants. to the extent any exists. is traceable to the plaintilrs proposed amendment of his rnmplaint and BP. Sec 11\·.rn 1·. ( 'i1r of .\'e11· fork. 91 .·\.D.2d 661 I 2d I lcp ·1 1982) i-·prejudice sufticicnt to defeat an amendment must be traceable ·10 the omission from the original pleading of ,,hatc,er it is the amended pleading wants to add .. ). MnreoYer. ,,hcthcr plaintiffs accident occurred on the sidewalk adjacent to defendants' premises or in the hack parking lot that \\as undisputed!: part of defendants· same premises. the obligation to keep hoth areas in a reasonably safe condition ,,as defendants· alone. Sec .\"iu11g Fu lie 1·. Ji-0011 .\la11uge111e11/. 3.J N.Y.3d 1(,7. 17.J (2019): !'era/lo\' ll<!nri<Jlle:::. !00 N.Y.2d 139 (2003 ). Thus. plaintifrs proposed amendment docs not alter the defendants· potential liability in this matter. The proponent of a summary judgment motion must make a prima facic showing 01· entitlement to judgment as a matter of la,,. tendering suflicient eYidencc to eliminate any material issues of fact from the case. Winegrml 1·. /Vc\1' l"ork llnirersity .tfedical ( 'en/er. 64 N. Y.2d 851. 853 ( 1985). I !ere. defendants· motion for summary judgment is predicated less upon an cvidcntiary showing so as to eliminate all questions of fact hut. rather. is premised on the contradiction between plaintitrs pleadings and his testimony as they pertain to the location of his accident on defendants· premises. If plaintiff is not permitted to amend his pleadings. it is axiomatic that his testimony 1 The Court notes that Defendants c-filed requests to have subpoenas to depose these EM J's so-ordered on (ktobcr 6, 2020 (EF66-67), and again on November 30, 2021 (EF 88-89). Both of these effort~ come at least five years after this action \\.as tiled. 4 of 5 INDEX NO. 101096/2014 [*FILED: 5] RICHMOND COUNTY CLERK 12/08/2021 09:18 A NYSCEF DOC. NO. 90 RECEIVED NYSCEF: 12/08/2021 cannot be reconciled with the allegations in his pleadings. l lowc\'cL given the foregoing analysis of plaintitrs cross-motion. in light of the absence of prejudice to the defendants. and considering the policy of this jurisdiction to rcsohc actions on their merits\\ hene\ er possible ( 0. K. I'e1m/e11111 In!/., UJ. V Palmieri & Caslig!ione. U.I'. 1:16 A.D.3d 767 [2d Dep·t 20161). it is ordered that defendants· motion is denied and plaintiffs cross-motion is granted. Accordingly. it is ORDl:RED that defendants·. Sahatore Blanda and Cristin Curry. motion. bearing motion sequence no. 05. to strike plaintiffs amended \'erilicd hill of particulars and granting defendants summary judgment is denied. and it is ORDERED that plaintiff's cross-motion. bearing motion sequence no. 06. for leave to amend his complaint and bill of particulars and to deem the same sencd 11u11c pro 11mc.s granted. This constitutes the Decision and Order of the Court. . / Dated: December 7. 2021 /_.//,// ~, /i (IL / / 0 ((([, ORLJ\~O Mi\RRAZiO~ JR .. J . ~ / Hon. Orlando Marratzo, Jr. Supreme Court Justice 5 5 of 5

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