| Frumento v On Rite Co., Inc. |
| 2009 NY Slip Op 07584 [66 AD3d 828] |
| October 20, 2009 |
| Appellate Division, Second Department |
| Maria Frumento, Appellant, v On Rite Co., Inc.,Respondent, et al., Defendants. |
—[*1] Robert J. Bard (O'Connor, O'Connor, Hintz & Deveney, LLP, Melville, N.Y. [Michael T.Reagan], of counsel), for respondent.
In an action to recover damages for negligence, breach of express warranty, strict productsliability, and fraudulent misrepresentation, the plaintiff appeals from an order of the SupremeCourt, Queens County (Grays, J.), entered May 27, 2008, which granted the motion of thedefendant On Rite Co., Inc., pursuant to CPLR 3025 (b) for leave to amend its answer to assertthe statute of limitations as a defense and to dismiss the complaint insofar as asserted against itas time-barred.
Ordered that the order is affirmed, with costs.
The plaintiff was a hairstylist/technician for the defendant Hair Club for Men, LLC, and/orthe defendant Hair Club for Men of Albany, Ltd. In 2002 she allegedly began to developsymptoms resulting from her exposure to specified chemicals she used in the course of heremployment. At least one of these chemicals allegedly was manufactured, sold, and distributedby the defendant On Rite Co., Inc. (hereinafter On Rite). In October 2003 the plaintiff terminatedher employment due to her physical condition. She ultimately was diagnosed with vasculitis, aform of lupus, and multiple chemical sensitivity. After the plaintiff commenced this action, OnRite served its answer, in which it failed to assert the statute of limitations as an affirmativedefense. Thereafter, On Rite moved pursuant to CPLR 3025 (b) for leave to amend its answer toadd such a defense, and to dismiss the complaint insofar as asserted against it as time-barred. Inthe order appealed from, the Supreme Court granted On Rite's motion. We affirm.
"Leave to amend pleadings should be freely given provided that the amendment is notpalpably insufficient, does not prejudice or surprise the opposing party, and is not patentlydevoid of merit" (Gitlin vChirinkin, 60 AD3d 901, 901-902 [2009]; see Sheila Props., Inc. v A Real Good Plumber, Inc., 59 AD3d 424,426 [2009]; Boakye-Yiadom vRoosevelt Union Free School Dist., 57 AD3d 929, 931 [2008]). "A determinationwhether to grant such leave is within the Supreme Court's broad discretion, and the exercise ofthat discretion will not be lightly disturbed" (Gitlin v Chirinkin, 60 AD3d at 902; see Ingrami v Rovner, 45 AD3d806, 808 [2007]). Here, the Supreme Court providently exercised its discretion in grantingthat [*2]branch of On Rite's motion which was for leave toamend its answer pursuant to CPLR 3025 (b) to assert a defense based on the applicable statuteof limitations. The plaintiff failed to demonstrate that any prejudice or surprise would result fromthe proposed amendment and, contrary to the plaintiff's contentions, the proposed amendmentwas not palpably insufficient or patently devoid of merit.
Upon granting that branch of On Rite's motion which was for leave to amend its answer, theSupreme Court properly granted that branch of On Rite's motion which was to dismiss thecomplaint insofar as asserted against it as time-barred. The limitations period applicable to thecauses of action sounding in negligence and strict products liability was the three-yearlimitations period set forth in CPLR 214-c. Given the nature of the claims at issue, that theplaintiff sustained personal injuries caused by exposure to a substance or a combination ofsubstances, these causes of action were to be commenced within three years of "the date ofdiscovery of the injury by the plaintiff or from the date when through the exercise of reasonablediligence such injury should have been discovered by the plaintiff, whichever is earlier" (CPLR214-c [2]). On Rite established that the plaintiff commenced this action more than three yearsafter she began to "suffer the manifestations and symptoms of . . . her physicalcondition" (Searle v City of New Rochelle, 293 AD2d 735, 736 [2002]). Accordingly,the Supreme Court properly granted that branch of On Rite's motion which was to dismiss thesecauses of action insofar as asserted against it as time-barred. Moreover, "[i]n applying the statuteof limitations, 'courts look to the "reality" or the "essence" of the action and not its form' " (Pacio v Franklin Hosp., 63 AD3d1130, 1132 [2009], quoting Matter of Paver & Wildfoerster [Catholic High SchoolAssn.], 38 NY2d 669, 674 [1976]). The plaintiff here cannot avoid the applicable three-yearlimitations period by asserting a cause of action to recover damages for fraud or fraudulentmisrepresentation which, if colorable at all, was merely incidental to the claims based onnegligence and strict products liability (cf. Nickel v Goldsmith & Tortora, Attorneys at Law, P.C., 57 AD3d496, 496-497 [2008]; Ruffing v Union Carbide Corp., 308 AD2d 526, 527 [2003];New York Seven-Up Bottling Co. v Dow Chem. Co., 96 AD2d 1051, 1052-1053 [1983],affd 61 NY2d 828 [1984]).
The complaint also asserted a cause of action to recover damages for breach of expresswarranty. A four-year limitations period applies to such a cause of action (see UCC2-725; Weiss v Polymer PlasticsCorp., 21 AD3d 1095, 1097-1098 [2005]). However, the Supreme Court nonethelessproperly dismissed this cause of action, as the plaintiff was not a "buyer" or "immediate buyer"of the goods at issue and, thus, the provisions of Uniform Commercial Code § 2-313 wereinapplicable.
The parties' remaining contentions are without merit. Mastro, J.P., Balkin, Dickerson andLott, JJ., concur.