| Galarraga v City of New York |
| 2008 NY Slip Op 06545 [54 AD3d 308] |
| August 5, 2008 |
| Appellate Division, Second Department |
| Manuel Galarraga, Also Known as Miguel Galarraga, Respondent,et al., Plaintiff, v City of New York, Appellant, et al.,Defendants. |
—[*1] The Pagan Law Firm, P.C., New York, N.Y. (Tania M. Pagan of counsel), forrespondent.
In an action to recover damages for personal injuries, the defendant City of New Yorkappeals from (1) a judgment of the Supreme Court, Queens County (Kitzes, J.), enteredNovember 2, 2006, and (2) an amended judgment of the same court entered December 11, 2006,which, upon, inter alia, a jury verdict finding that the defendant City of New York was 55% atfault in the happening of the accident, and the plaintiff was 45% at fault, and upon an order of thesame court dated April 24, 2006, which, among other things, denied that branch of the motion ofthe defendant City of New York pursuant to CPLR 4404 (a) which was to dismiss the plaintiff'sLabor Law § 241 (6) cause of action for failure to allege a violation of a specific provisionof the Industrial Code, is in favor of the plaintiff Manuel Galarraga, also known as MiguelGalarraga, and against it in the principal sum of $412,500.
Ordered that the appeal from the judgment is dismissed, as the judgment was superseded bythe amended judgment; and it is further,
Ordered that the amended judgment is affirmed; and it is further,
Ordered that one bill of costs is awarded to the respondent.[*2]
The plaintiff was injured during the course of hisemployment removing asbestos from a New York City school when he struck his head on anoverhanging pipe as he was attempting to leave his basement work area after the lighting andventilation failed. He commenced this action against, among others, the City of New York,which owned the building in which he was working, to recover damages, inter alia, in effect, forviolation of Labor Law § 241 (6). At trial, the plaintiff asserted that the City violated 12NYCRR 23-1.8 (c) (1), which provides that every person required to work or pass within anyarea "where the hazard of head bumping exists shall be provided with and shall be required towear an approved safety hat." Here, the plaintiff argued, although the overhanging pipes in hisbasement work area constituted such a hazard, he was not provided with a safety hat. The juryfound, among other things, that the City had violated Labor Law § 241 (6) and was 55% atfault in the happening of the accident, and awarded the plaintiff damages. The damages weresubsequently reduced by stipulation of the plaintiff. On appeal, the City argues, inter alia, that theSupreme Court erred by, in effect, permitting the plaintiff to amplify his pleadings at trialconcerning his Labor Law § 241 (6) cause of action to identify the specific provision of theIndustrial Code (hereinafter the Code) allegedly violated, and that the damages awarded, even asreduced by the stipulation of the plaintiff, are excessive. We disagree.
Labor Law § 241 (6) imposes a nondelegable duty on owners and contractors toprovide reasonable and adequate protection and safety for workers, and to comply with thespecific safety rules and regulations promulgated by the Commissioner of the Department ofLabor as set forth in the Code (see Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494,502 [1993]; Norton v Park Plaza Owners Corp., 263 AD2d 531 [1999]). To establish acause of action for a violation of Labor Law § 241 (6), a plaintiff must plead and prove aviolation of a specific provision of the Code (see Ross v Curtis-Palmer Hydro-Elec. Co.,81 NY2d 494, 505 [1993]). Here, during the pretrial proceedings, the plaintiff did notidentify the specific Code provision allegedly violated. However, concomitantly, the City nevermade a demand for the same. Indeed, although such a demand was made by a former party, thereis no evidence that the City joined in that demand. Further, although the plaintiff deferred aresponse to the demand until after the completion of disclosure, no response was provided. Nofurther mention was made of the demand. Consequently, it was not until trial that the plaintiffidentified 12 NYCRR 23-1.8 (c) (1) as the relevant Code provision. The City argues that thisdelay was fatal. However, on the facts and circumstances presented, we disagree.
In general, leave to amend a pleading may be granted at any time, including during trial,absent prejudice or surprise to the opposing party, unless the proposed amendment is palpablyinsufficient or patently devoid of merit (see McCaskey, Davies & Assoc. v New York CityHealth & Hosps. Corp., 59 NY2d 755 [1983]; Morris v Queens Long Is. Med. Group, P.C., 49 AD3d 827 [2008];Lanpont v Savvas Cab Corp., 244 AD2d 208 [1997]). However, where the application forleave to amend is made long after the action has been certified for trial, judicial discretion inallowing such amendments should be discrete, circumspect, prudent, and cautious, and, whereleave is sought on the eve of trial, judicial discretion should be exercised sparingly (see Morris v Queens Long Is. Med. Group,P.C., 49 AD3d 827 [2008]). Relevant to the case at bar, this Court has held that thefailure to identify the specific Code provision allegedly violated in support of a Labor Law§ 241 (6) cause of action either in the complaint or in the bill or supplemental bills ofparticulars is not necessarily fatal. Rather, leave to amend the pleadings to so identify the relevantCode provision may properly be granted, even after the note of issue has been filed, where theplaintiff makes a showing of merit, and the amendment involves no new factual allegations,raises no new theories of liability, and causes no prejudice to the defendant (see Dowd v City of New York, 40AD3d 908 [2007]; Latino v Nolan & Taylor-Howe Funeral Home, 300 AD2d 631[2002]; Kelleir v Supreme Indus. Park, 293 AD2d [*3]513 [2002]). Here, applying these standards, the Supreme Court didnot err by, in effect, permitting the amendment of the plaintiff's pleadings to identify 12 NYCRR23-1.8 (c) (1) as the relevant provision.
On appeal, as before the Supreme Court, the City's arguments suggest that the plaintiff'sinitial pleading failure in and of itself was fatal, or that, at a minimum, the amendment shouldhave been denied due to laches. However, as discussed, supra, the initial pleading failurewas not in and of itself fatal. Further, although a long period of time elapsed between theaccident and the trial, the cause of the delay is not explained on the record. In any event, laches isnot mere delay, but considerable delay resulting in a change of position, intervention of equities,loss of evidence, or other disadvantages (see O'Dette v Guzzardi, 204 AD2d 291 [1994]).Here, this was not demonstrated.
Similarly, on appeal, as before the Supreme Court, the City does not particularize itsargument that it was prejudiced by the plaintiff's belated amplification of his pleadings. Rather,the City's arguments merely suggest that it was misled into believing that the plaintiff's factualallegations focused upon who was responsible for the loss of lighting in the work area, notwhether the work area posed a hazard of head bumping. However, a conclusion that the City wasprejudiced or surprised by the belated identification of 12 NYCRR 23-1.8 (c) (1), or that theCode provision raised new factual allegations or new theories of liability, is not supported by therecord.
The City, as the appellant, is responsible for assembling a proper record on appeal (seeGarnerville Holding Co. v IMC Mgt., 299 AD2d 450 [2002]). However, the City did notinclude in the record on appeal any of the plaintiff's pretrial testimony. Consequently, it cannot bedetermined upon the record presented that the plaintiff's testimony at trial, which focused solelyon the lack of a safety hat, surprised or prejudiced the City, or raised new factual allegations ornew theories of liability. Indeed, although the sole focus of the plaintiff's opening statement andtestimony at trial was the lack of a safety hat, with the loss of lighting in the basement addressedmerely as furnishing the occasion for the happening of the accident, the City did not object to theplaintiff's opening statement or his testimony at trial on the ground that it raised new factualallegations or theories of liability. Rather, during cross-examination, the City challenged theplaintiff's testimony on the merits, questioning him concerning whether the overhanging pipes inhis basement work area in fact presented a hazard of head bumping and, therefore, whether asafety hat was needed. Similarly, the City did not raise any relevant objection when the plaintiffannounced his intention to call an expert witness to provide testimony concerning, inter alia, thealleged violation of "23.18 [sic] of the Industrial Code." Rather, it was only after bothsides had rested that the City first raised the issue of the plaintiff's belated identification of therelevant Code provision. Further, as noted, supra, the City's argument at that time was, ineffect, that the initial pleading defect was in and of itself fatal. Otherwise, as also noted,supra, the City made only a nonparticularized claim of prejudice. It did not, for example, arguethat it had been misled in preparing its defense. Nor did it request an adjournment or any othersimilar relief to address the belatedly-identified Code provision. Indeed, it is clear from the City'sopening statement and its evidence at trial that its defense was not directed at the factualpredicate for the plaintiff's Labor Law § 241 (6) cause of action. In fact, the City called nowitnesses at trial. Rather, the focus of the City's defense was that it could not and should not beheld liable for the plaintiff's injuries because it did not supervise or control his work orequipment, or his work area. The City noted that the plaintiff was an employee of a specializedcompany that had its own workers, equipment, and methods, and that, due to the nature of thework, wholly controlled the work area to the exclusion of others. However, that defense waswithout merit and is not pressed on appeal. An owner's liability under Labor Law § 241 (6)is not predicated upon supervision or control (see Rizzuto v L.A. Wenger Contr. Co., 91NY2d 343 [1998]; Gordon v Eastern Ry. Supply, 82 NY2d 555 [1993]). [*4]On the merits, the City argued that the basement work area did notpresent a hazard of head bumping because all of the overhead pipes were at least six feet off ofthe ground and, therefore, the plaintiff need not have been provided with a safety hat. However,this argument was rebutted by the happening of the accident and by the plaintiff's testimony thathe was provided with a hard hat the day before his accident, and that he would have beenprovided with one on the day in question but for the fact that the key to unlock the storage areafor the same was not on-site at the time he commenced work. In sum, the plaintiff's proposedamendment had merit and, on the record presented, was not shown to have involved new factualallegations, raised new theories of liability, or caused prejudice to the City. Thus, the SupremeCourt did not err by, in effect, permitting the amendment.
As reduced by the plaintiff's stipulation, the damages awarded do not deviate materially fromwhat would be reasonable compensation (see e.g. Sozzi v Gramercy Realty Co. No. 2,304 AD2d 555 [2003]).
The City's remaining contentions are without merit or need not be reached in light of ourdetermination. Lifson, J.P., Ritter, Florio and Carni, JJ., concur.