| Beja v Meadowbrook Ford |
| 2008 NY Slip Op 01285 [48 AD3d 495] |
| February 13, 2008 |
| Appellate Division, Second Department |
| Joel Beja, Respondent, v Meadowbrook Ford, DoingBusiness as Syosset Ford, et al., Appellants, et al., Defendant. |
—[*1] Gabor & Gabor, Garden City, N.Y. (David G. Gabor of counsel), for respondent.
In an action, inter alia, to recover damages for wrongful termination of employment, thedefendants Meadowbrook Ford, doing business as Syosset Ford, and Steven Weiss appeal fromso much of an order of the Supreme Court, Nassau County (Brandveen, J.), dated December 1,2006, as denied their motion pursuant to CPLR 3211 (a) (7) to dismiss the complaint insofar asasserted against them and granted the plaintiff's cross motion pursuant to CPLR 3025 (b) forleave to amend the complaint, among other things, to add certain causes of action against them.
Ordered that the order is reversed insofar as appealed from, on the law, with costs, themotion of the defendants Meadowbrook Ford, doing business as Syosset Ford, and Steven Weisspursuant to CPLR 3211 (a) (7) to dismiss the complaint insofar as asserted against them isgranted and the plaintiff's cross motion for leave to amend the complaint is denied.
The plaintiff formerly was employed by the defendant Meadowbrook Ford, doing business asSyosset Ford (hereinafter Syosset), which is owned in part by the defendant Steven Weiss. Theplaintiff alleges that he was assaulted by the defendant Francis Esposito, who was then hiscoworker at Syosset. The plaintiff asserted several causes of action against the defendantsSyosset, Weiss, and Esposito. Syosset and Weiss jointly moved to dismiss the complaint insofaras asserted against them pursuant to CPLR 3211 (a) (7), and the plaintiff cross-moved for leaveto amend the complaint pursuant to CPLR 3025 (b), inter alia, to add certain causes of actionagainst Syosset and Weiss. In [*2]the order appealed from, theSupreme Court, among other things, denied the motion of Syosset and Weiss to dismiss thecomplaint and granted the plaintiff's cross motion for leave to amend the complaint. We reversethe order insofar as appealed from.
"On a motion to dismiss pursuant to CPLR 3211 (a) (7) for failure to state a cause of action,the court must afford the pleadings a liberal construction, accept all facts as alleged in thepleadings to be true, accord the plaintiff the benefit of every possible inference, and determineonly whether the facts as alleged fit within any cognizable legal theory" (Holmes v Gary Goldberg & Co., Inc.,40 AD3d 1033, 1034 [2007]; see Leon v Martinez, 84 NY2d 83, 87 [1994]).Applying this standard, the complaint does not state a cause of action insofar as asserted againstSyosset and Weiss. With regard to these defendants, the plaintiff's allegations were insufficient tostate causes of action to recover damages for personal injuries under principles of vicariousliability (see Elmore v City of NewYork, 15 AD3d 334, 335 [2005]), were barred by the exclusivity provision of Workers'Compensation Law §§ 11 and 29 (6) (see Martinez v Canteen Vending Servs. Roux Fine Dining Chartwheel,18 AD3d 274, 275 [2005]; Conde vYeshiva Univ., 16 AD3d 185, 187 [2005]; Miller v Huntington Hosp., 15 AD3d 548, 549-550 [2005]), orotherwise failed to give rise to any cause of action (see Ortega v City of New York, 9 NY3d 69 [2007]; Murphy vAmerican Home Prods. Corp., 58 NY2d 293, 303 [1983]).
Moreover, the Supreme Court should have denied the plaintiff's cross motion pursuant toCPLR 3025 (b) for leave to amend the complaint, inter alia, to add certain causes of actionagainst Syosset and Weiss. While leave to amend a complaint should be freely given (seeCPLR 3025 [b]), where, as here, the proposed amendment "is palpably insufficient or patentlydevoid of merit" (G.K. Alan Assoc., Inc.v Lazzari, 44 AD3d 95, 99 [2007]), the amendment should not be permitted.
Accordingly, the motion to dismiss the complaint insofar as asserted against Syosset andWeiss should have been granted and the cross motion for leave to amend the complaint shouldhave been denied. Rivera, J.P., Lifson, Angiolillo and Balkin, JJ., concur.