| Carro v Lyons Falls Pulp & Paper, Inc. |
| 2008 NY Slip Op 09220 [56 AD3d 1276] |
| November 21, 2008 |
| Appellate Division, Fourth Department |
| James Carro, Plaintiff, v Lyons Falls Pulp & Paper, Inc., Defendantand Third-Party Plaintiff-Respondent. Laframboise Group Ltd., Third-PartyDefendant-Appellant. |
—[*1] Damon & Morey LLP, Buffalo (Michael J. Willett of counsel), for third-partyplaintiff-respondent.
Appeal from an order (denominated order and judgment) of the Supreme Court, OneidaCounty (John W. Grow, J.), entered June 28, 2007 in a personal injury action. The order, interalia, granted third-party plaintiff's motion for leave to amend the third-party complaint anddenied the cross motion of third-party defendant for summary judgment dismissing thethird-party complaint.
It is hereby ordered that the order so appealed from is unanimously affirmed without costs.
Memorandum: Plaintiff commenced this action seeking damages for injuries he sustainedwhile performing construction work at a pulp and paper mill owned by defendant and third-partyplaintiff, Lyons Falls Pulp & Paper, Inc. (LFPP). Third-party defendant, Laframboise Group Ltd.(Laframboise), appeals from an order that, inter alia, granted the motion of LFPP for leave toamend the third-party complaint and denied the cross motion of Laframboise for summaryjudgment dismissing the third-party complaint. We conclude that Supreme Court properlygranted the motion of LFPP for leave to amend the third-party complaint. "Generally, leave toamend a pleading should be freely granted in the absence of prejudice to the nonmoving partywhere the amendment is not patently lacking in merit . . . , and the decision whetherto grant leave to amend a complaint is committed to the sound discretion of the court"(Anderson v Nottingham Vil. Homeowner's Assn., Inc., 37 AD3d 1195, 1198 [2007][internal quotation marks omitted]; see CPLR 3025 [b]; Edenwald Contr. Co. v Cityof New York, 60 NY2d 957, 959 [1983]). Here, the proposed amendments are not patentlylacking in merit, and we perceive no basis for [*2]disturbing thecourt's determination (see generally Anderson, 37 AD3d at 1198; McFarland vMichel, 2 AD3d 1297, 1300 [2003]).
Inasmuch as the claim for contractual indemnification was omitted from the amendedthird-party complaint, we do not address that part of the cross motion of Laframboise forsummary judgment dismissing that claim. We conclude, however, that the court properly deniedthose parts of the cross motion for summary judgment dismissing the claims for common-lawindemnification or, alternatively, contribution. " 'The right of common-law indemnificationbelongs to parties determined to be vicariously liable without proof of any negligence or activefault on their part' " (Brickel v Buffalo Mun. Hous. Auth., 280 AD2d 985, 985 [2001])."A subcontractor is obligated to provide common-law indemnification . . . where itis established that the subcontractor's negligence actually caused the accident or where thesubcontractor had the authority to supervise, control and direct the work of plaintiff" (Lapi vRosewood Home Bldrs., 256 AD2d 1008, 1009 [1998]; see Malecki v Wal-MartStores, 222 AD2d 1010, 1011 [1995]). Here, Laframboise failed to meet its initial burden onthe cross motion because the evidence submitted by Laframboise in support thereof neitherprecludes the possibility that plaintiff's fall was caused by a defective ladder supplied byLaframboise nor demonstrates that Laframboise lacked the authority to supervise, control ordirect plaintiff's work. We thus conclude on the record before us that there are triable issues offact that preclude summary judgment with respect to common-law indemnification andcontribution (see e.g. Guzman v Gumley-Haft, Inc., 274 AD2d 555, 556 [2000];Lapi, 256 AD2d at 1009). Present—Smith, J.P., Centra, Lunn, Fahey and Green, JJ.