| Velez v South Nine Realty Corp. |
| 2008 NY Slip Op 10157 [57 AD3d 889] |
| December 23, 2008 |
| Appellate Division, Second Department |
| Jesus Velez et al., Respondents-Appellants, v South Nine RealtyCorp. et al., Appellants-Respondents. |
—[*1] Michael Stewart Frankel, New York, N.Y. (Richard H. Bliss and Michael Stewart Frankel ofcounsel), for respondents-appellants.
In an action to recover damages for personal injuries, etc., (1) the defendants appeal, as limited bytheir brief, from so much of an order of the Supreme Court, Kings County (Kramer, J.), datedSeptember 28, 2006, as denied that branch of their cross motion which was for summary judgmentdismissing the complaint insofar as asserted against the defendants Steven Weil and Icik Meizlik, andthe plaintiffs cross-appeal, as limited by their brief, from so much of the same order as denied theirmotion for summary judgment on the issue of liability as against the defendant South Nine Realty Corp.,and (2) the defendants appeal, as limited by their brief, from so much of an order of the same courtdated March 5, 2007, as, upon reargument, adhered to so much of the original determination as deniedthat branch of their cross motion which was for summary judgment dismissing the complaint insofar asasserted against the defendants Steven Weil and Icik Meizlik, and the plaintiffs cross-appeal, as limitedby their brief, from so much of the same order as, upon reargument, adhered to so much of the originaldetermination as denied their motion for summary judgment on the issue of liability as against thedefendant South Nine Realty Corp. and granted that branch of the defendants' cross motion which wasfor leave to amend their answer to assert release and satisfaction as an affirmative defense with respectto the individual claims of the plaintiff Pablo Velez.
Ordered that the appeal and cross appeal from the order dated September 28, 2006 are [*2]dismissed, as that order was superseded by the order dated March 5,2007, made upon reargument; and it is further,
Ordered that the order dated March 5, 2007 is modified, on the law, the facts, and in the exerciseof discretion, (1) by deleting the provision thereof, upon reargument, adhering to so much of the originaldetermination in the order dated September 28, 2006, as denied that branch of the defendants' crossmotion which was for summary judgment dismissing the complaint insofar as asserted against thedefendants Steven Weil and Icik Meizlik, and substituting therefor a provision, upon reargument,vacating so much of the order dated September 28, 2006, as denied that branch of the defendants'cross motion and granting that branch of the defendants' cross motion, and (2) by deleting the provisionthereof, upon reargument, granting that branch of the defendants' cross motion which was for leave toamend their answer to assert release and satisfaction as an affirmative defense with respect to theindividual claims of the plaintiff Pablo Velez, and substituting therefor a provision, upon reargument,adhering to the original determination denying that branch of the defendants' cross motion; as somodified, the order dated March 5, 2007, is affirmed insofar as appealed and cross-appealed from;and it is further,
Ordered that one bill of costs is awarded to the defendants.
The Supreme Court properly denied the plaintiffs' motion for summary judgment on the issue ofliability against the defendant South Nine Realty Corp. (hereinafter South Nine). The infant plaintiffsallegedly sustained injuries from exposure to lead paint while residing in an apartment building owned bySouth Nine. To establish their prima facie entitlement to summary judgment on the issue of liability, theplaintiffs were required to establish, as a matter of law, the existence of a lead hazard at the subjectpremises, that South Nine had actual or constructive notice of the condition, that South Nine failed toexercise reasonable care in remedying the condition, and that the infant plaintiffs' injuries were causallyrelated to the condition at the subject premises (see Chapman v Silber, 97 NY2d 9, 22[2001]; Alonso v Coutinho Enters., LLC, 35 AD3d 641 [2006]; Shafqat v Blackman,16 AD3d 574 [2005]; Zaman v Patwary, 295 AD2d 424, 424-425 [2002]). The evidencesubmitted in support of the plaintiffs' motion failed to demonstrate, as a matter of law, that the infantplaintiffs' injuries were causally related to the condition at the subject premises. Since the plaintiffs failedto make a prima facie showing of their entitlement to judgment as a matter of law on the issue ofliability, their motion should have been denied, regardless of the sufficiency of the opposing papers(see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851 [1985]).
The Supreme Court erred in denying that branch of the defendants' cross motion which was forsummary judgment dismissing the complaint insofar as asserted against the defendants Steven Weil andIcik Meizlik. The defendants established prima facie that Weil, an employee of the managing agent ofthe premises, and Meizlik, the sole shareholder of South Nine, could not be held individually liable bydemonstrating that neither one of them had complete control of the building or any duties related toremedying the hazardous condition (see Matias v Mondo Props. LLC, 43 AD3d 367 [2007];Worthy v New York City Hous. Auth., 21 AD3d 284, 284-285 [2005]; Ali vPacheco, 19 AD3d 439, 440 [2005]; Matter of Ramirez v City of New York, 13 AD3d248 [2004]; see generally Administrative Code of City of NY § 27-2056.5). Inopposition, the plaintiffs failed to raise a triable issue of fact.
The decision of whether to grant leave to amend a pleading is generally left to the sound discretionof the trial court (see Edenwald Contr. Co. v City of New York, 60 NY2d 957, 959 [1983];M. Kramer & Sons v Facilities Dev. Corp., 135 AD2d 942 [1987]). Where, however, "anapplication for [*3]leave to amend is sought after a long delay and thecase has been certified as ready for trial, 'judicial discretion in allowing such amendments should bediscrete, circumspect, prudent and cautious' " (Countrywide Funding Corp. v Reynolds, 41AD3d 524, 525 [2007], quoting Clarkin v Staten Is. Univ. Hosp., 242 AD2d 552 [1997]).
Here, the Supreme Court improvidently exercised its discretion in granting the defendants leave toamend their answer to assert release and satisfaction as an affirmative defense with respect to theindividual claim of the plaintiff Pablo Velez. The defendants failed to offer a reasonable excuse for theinordinate delay in their application for leave to amend, which was made nearly five months after thethird note of issue and certificate of readiness were filed and nearly 12 years and five months from thetime the defendants last amended their answer, where the proposed amendment was based uponfactual circumstances known at the time of the commencement of the action (see Keating v NanuetBd. of Educ., 44 AD3d 623 [2007]; Chernow v Chernow, 39 AD3d 684 [2007];Clarkin v Staten Is. Univ. Hosp., 242 AD2d 552 [1997]; Mohammed v City of NewYork, 242 AD2d 321, 322 [1997]; see also Gallo v Aiello, 139 AD2d 490, 491 [1988]).Moreover, under the circumstances of this case, such affirmative defense was patently insufficient anddevoid of merit (cf. Glassman v ProHealth Ambulatory Surgery Ctr., Inc., 23 AD3d 522, 523[2005]; Santangelo v City of New York, 66 AD2d 880, 881 [1978]). Fisher, J.P., Carni,McCarthy and Belen, JJ., concur.