| Morel v Schenker |
| 2009 NY Slip Op 05605 [64 AD3d 403] |
| July 2, 2009 |
| Appellate Division, First Department |
| Juan Carlos Morel, an Infant, by His Mother and Natural Guardian,Carmen Hernandez, et al., Respondents-Appellants, v Ben Schenker, Defendant, and164 & 172 Holding LLC, Appellant-Respondent. |
—[*1] Philip Newman, PC, Bronx (Steven J. Mines of counsel), forrespondents-appellants.
Order, Supreme Court, Bronx County (Sallie Manzanet-Daniels, J.), entered January 13,2009, which denied defendant Holding's motion for summary judgment dismissing the complaintand denied plaintiffs' cross motion for leave to amend their complaint, unanimously modified, onthe law, plaintiffs' cross motion for leave to amend granted, and otherwise affirmed, withoutcosts.
The underlying action arose out of two separate incidents: the infant plaintiff's allegedexposure to mold, dust and vermin in or about October 2000, and alleged injury to plaintiffmother (introduced in the bill of particulars) from a ceiling collapse on February 23, 2003.Triable issues of fact exist as to whether Holding was a proper party to the litigation. AlthoughHolding's application to the motion court was predicated solely on its lack of ownership of thesubject property, it now argues on appeal that there is no proof it had any duty toward theproperty, maintained the property, or employed anyone who appeared at depositions on behalf ofthe property. However, admissions made by counsel on behalf of their clients are binding(see Matter of Union Indem. Ins. Co. of N.Y., 89 NY2d 94, 103 [1996]), and Holding'sdiscovery responses create issues of fact as to whether work or repairs made by its employeesmay have caused plaintiffs' injuries.
As to the proposed amendment to the complaint to add additional defendants, a claimasserted against a new party will relate back to the date upon which plaintiffs' claim waspreviously interposed against the original named defendant, despite the fact that the new partywas not named in the originally served process, but only if (1) both claims arose out of the sameconduct, transaction or occurrence, (2) the new party is "united in interest" with the originaldefendant and thus can be charged with notice of the initiation of the action without being [*2]prejudiced in maintaining his defense on the merits, and (3) thenew party knew or should have known that but for a mistake by the plaintiff as to the identity ofthe proper parties, the action would have been brought against him as well (Brock v Bua,83 AD2d 61, 69 [1981]). Here, defendant and the proposed defendants produced the depositiontestimony of the superintendent of the subject premises, who stated that he was an employee ofCOB Holding, one of the proposed defendants. This testimony directly contradicted a discoveryresponse on August 17, 2005, in which Holding conceded that the employee "was thesuperintendent on the alleged date of loss, 2/23/03 and is still currently employed by. . . Holding . . . as superintendent." Further, the proposed defendants,along with Holding, were identified as named insureds on the same general insurance policyapplicable to the subject premises. Holding shared the same address with the proposeddefendants. Under the circumstances, we find that plaintiffs have provided sufficient evidenceentitling them to amend their complaint.
Holding's argument that certain evidence attached to plaintiffs' cross motion papers shouldbe stricken as inadmissible because it is unauthenticated is raised for the first time in reply, andis thus rejected (Matter of Kelly's SheetMetal, Inc. v Thompson, 52 AD3d 220 [2008]). Concur—Gonzalez, P.J., Tom,Mazzarelli, Andrias and Saxe, JJ.