| Falkowski v Krasdale Foods, Inc. |
| 2008 NY Slip Op 04054 [50 AD3d 1091] |
| April 29, 2008 |
| Appellate Division, Second Department |
| Lukasz Falkowski, Respondent, v Krasdale Foods, Inc.,Defendant and Third-Party Plaintiff-Respondent-Appellant and Second Third-PartyPlaintiff-Respondent-Appellant. Commercial Transportation Group et al., Third-PartyDefendants-Appellants; Commercial Personnel Services, Inc., Second Third-PartyDefendant-Appellant. |
—[*1] Koenig & Samberg, Mineola, N.Y. (Arnold Koenig of counsel), for third-partydefendants-appellants. John P. Humphreys, Melville, N.Y. (Scott W. Driver of counsel), for defendant third-partyplaintiff/second third-party plaintiff-respondent-appellant. Samuel J. Lurie, New York, N.Y. (Dennis A. Breen of counsel), forplaintiff-respondent.
In an action to recover damages for personal injuries, (1) Commercial Personnel Services,Inc., appeals from so much of an order of the Supreme Court, Queens County (Price, J.), enteredDecember 11, 2006, as granted that branch of the cross motion of Krasdale Foods, Inc., whichwas for summary judgment against it on its cause of action in the second third-party complaintfor contractual indemnification, (2) Commercial Transportation Group and CommercialLogistics, Inc., separately appeal from so much of the same order as granted those branches ofthe cross motion of Krasdale Foods, Inc., which were for summary judgment against them (a) onits cause of action in the third-party complaint for contractual indemnification and (b) on itscause of action alleging breach of contract for failure to procure insurance, and (3) KrasdaleFoods, Inc., cross-appeals, as [*2]limited by its brief, from somuch of the same order as (a) granted that branch of the plaintiff's motion which was for leave toserve and file an amended complaint and amended bill of particulars to add a cause of actionalleging negligent entrustment, and (b) denied that branch of its cross motion which was forsummary judgment dismissing the complaint.
Ordered that the order is affirmed insofar as appealed and cross-appealed from, with one billof costs payable to Krasdale Foods, Inc., by Commercial Transportation Group, CommercialLogistics, Inc., and Commercial Personnel Services, Inc., appearing separately and filing separatebriefs, and one bill of costs payable by Krasdale Foods, Inc., to the plaintiff.
The Supreme Court providently exercised its discretion in granting that branch of theplaintiff's motion which was for leave to serve and file an amended complaint and amended billof particulars to add a cause of action alleging negligent entrustment (see Alatorre v Hee Ju Chun, 44 AD3d596 [2007]; Maloney Carpentry,Inc. v Budnik, 37 AD3d 558 [2007]). Since a plaintiff may oppose a motion forsummary judgment by relying on an unpleaded cause of action (see Alvord & Swift v MullerConstr. Co., 46 NY2d 276, 281 [1978]; Perez v Cassone Leasing, Inc., 40 AD3d 946 [2007]; Comsewogue Union Free School Dist. vAllied-Trent Roofing Sys., Inc., 15 AD3d 523 [2005]), prejudice cannot be inferredsimply because the plaintiff sought leave to amend the complaint shortly before Krasdale Foods,Inc. (hereinafter Krasdale), cross-moved for summary judgment.
The Supreme Court properly denied that branch of Krasdale's cross motion which was forsummary judgment dismissing the complaint, as Krasdale failed to establish its prima facieentitlement to judgment as a matter of law. There are issues of fact as to whether it had actual orconstructive notice of the alleged defective condition causing the accident (see Gatto v Turano, 6 AD3d 390[2004]; Abayev v Jaypson Jewelry Mfg.Corp., 2 AD3d 548 [2003]), and whether it knowingly entrusted a dangerous instrumentto a person who did not understand all the dangers posed (see Hamilton v Beretta U.S.A.Corp., 96 NY2d 222, 236 [2001]; Splawnik v Di Caprio, 146 AD2d 333 [1989]; Martinez v Hitachi Constr. Mach. Co., Ltd.,15 Misc 3d 244, 254 [2006]).
Krasdale established its prima facie entitlement to judgment as a matter of law on its causesof action in the third-party complaint and the second third-party complaint for contractualindemnification. The exclusivity provisions of Workers' Compensation Law § 11 do notvitiate a provision in a written contract by which an employer expressly agrees to provideindemnification (see Rodrigues v N & SBldg. Contrs., Inc., 5 NY3d 427 [2005]; Tonking v Port Auth. of N.Y. & N.J., 3 NY3d 486 [2004]; Castilla v K.A.B. Realty, Inc., 37AD3d 510 [2007]; Spiegler vGerken Bldg. Corp., 35 AD3d 715 [2006]; Martelle v City of New York, 31 AD3d 400 [2006]). The contractneed not be signed by the employer to be enforceable (see Flores v Lower E. Side Serv. Ctr., Inc., 4 NY3d 363, 369[2005]; Mentesana v Bernard JanowitzConstr. Corp., 36 AD3d 769 [2007]). In opposition, the third-party defendantsCommercial Transportation Group and Commercial Logistics, Inc. and the second third-partydefendant Commercial Personnel Services, Inc. failed to raise a triable issue of fact.
Finally, the Supreme Court properly granted that branch of Krasdale's cross motion whichwas for summary judgment on the cause of action alleging breach of contract against thethird-party defendants for failure to procure insurance naming Krasdale as an additional insured(see Kinney v Lisk Co., 76 NY2d 215 [1990]; Simel v City of New York, 274AD2d 466 [2000]; American Ref-Fuel Co. of Hempstead v Resource Recycling, 248AD2d 420 [1998]). Rivera, J.P., Skelos, Santucci and Belen, JJ., concur.