| Rodriguez v Paramount Dev. Assoc., LLC |
| 2009 NY Slip Op 08204 [67 AD3d 767] |
| November 10, 2009 |
| Appellate Division, Second Department |
| Noe Rodriguez et al., Respondents, v ParamountDevelopment Associates, LLC, et al., Defendants, and JMB Architecture, LLC, Appellant. (AndThird-Party Actions.) |
—[*1] Jaghab, Jaghab & Jaghab, P.C., Mineola, N.Y. (Erik J. Gerstenfeld of counsel), forrespondents.
In an action to recover damages for personal injuries, etc., the defendant JMB Architecture,LLC, appeals from an order of the Supreme Court, Suffolk County (Molia, J.), dated June 25,2008, which granted the plaintiffs' motion for leave to amend the complaint to name it as adefendant.
Ordered that the order is affirmed, with costs.
The plaintiff Noe Rodriguez (hereinafter the injured plaintiff) allegedly was injured whileperforming concrete work on the construction of a private residence owned by the defendantsJoseph Direnzo and Angela Direnzo (hereinafter together the Direnzos). The accident occurredwhen the injured plaintiff was cutting rebar with a concrete saw, and a metal shard hit him in theeye. The defendant third-party defendant JMB Architecture, LLC (hereinafter JMB), served asthe construction manager pursuant to a contract between it and the Direnzos.
The injured plaintiff and his wife, suing derivatively, commenced this action to [*2]recover damages for personal injuries against, among others, theDirenzos. Thereafter, the Direnzos commenced a third-party action against JMB. Subsequently,the plaintiffs moved for leave to amend the complaint to name JMB as a defendant. The SupremeCourt granted the plaintiffs' motion, and we affirm.
Leave to amend a pleading should be freely granted where the proposed amendment is notpalpably insufficient or patently devoid of merit and will not prejudice or surprise the opposingparty (see CPLR 3025 [b]; VistaProps., LLC v Rockland Ear, Nose & Throat Assoc., P.C., 60 AD3d 846, 847 [2009];Bennett v Long Is. Jewish Med. Ctr.,51 AD3d 959, 960-961 [2008]; Pellegrini v Richmond County Ambulance Serv., Inc., 48 AD3d436, 437 [2008]; ComsewogueUnion Free School Dist. v Allied-Trent Roofing Sys., Inc., 15 AD3d 523, 524 [2005]).JMB failed to demonstrate that it would be prejudiced by the plaintiffs' delay in moving for leaveto amend the complaint (see Cucuzza v Vaccaro, 109 AD2d 101, 103-104 [1985],affd 67 NY2d 825 [1986]; Leibel v Flynn Hill El. Co., 25 AD3d 768 [2006]; McFarland v Michel, 2 AD3d1297, 1300 [2003]; Crystal HouseManor v Totura, 5 AD3d 425, 426 [2004]), and the proposed amendment was neitherpalpably insufficient nor totally devoid of merit (see CPLR 3025 [b]; Lucido v Mancuso, 49 AD3d 220,227 [2008]; Sample v Levada, 8AD3d 465, 467-468 [2004]).
Furthermore, contrary to JMB's contention, the Supreme Court providently exercised itsdiscretion in granting the motion for leave to amend the complaint, despite the expiration of thestatute of limitations (see CPLR 203 [f]; Tyz v Integrity Real Estate & Dev., Inc., 43 AD3d 1038 [2007]; Vincente v Roy Kay, Inc., 35 AD3d448, 452 [2006]). The plaintiffs demonstrated the applicability of the relation-back doctrine,since JMB had actual notice of their potential claim and was already a third-party defendant inthe action (see Cucuzza v Vaccaro, 109 AD2d at 103-104; Duffy v Horton Mem.Hosp., 66 NY2d 473, 477-478 [1985]; Tyz v Integrity Real Estate & Dev., Inc., 43AD3d at 1038; Vincente v Roy Kay, Inc., 35 AD3d at 452).
JMB's remaining contentions are without merit. Skelos, J.P., Covello, Santucci and Balkin,JJ., concur.