| Koenig v Action Target, Inc. |
| 2010 NY Slip Op 06619 [76 AD3d 997] |
| September 21, 2010 |
| Appellate Division, Second Department |
| Daniel Koenig, Respondent, v Action Target, Inc.,Defendant, and County of Suffolk, Appellant. |
—[*1]
In an action, inter alia, to recover damages for personal injuries, the defendant County ofSuffolk appeals, as limited by its brief, from so much of an order of the Supreme Court, SuffolkCounty (Jones, Jr., J.), dated January 25, 2010, as granted the plaintiff's motion for leave toamend his complaint to add a cause of action based on General Municipal Law § 205-epredicated upon an alleged violation of Labor Law § 27-a, and denied, as academic, thosebranches of its cross motion which were for summary judgment dismissing the second, third, andfourth causes of action.
Ordered that the order is affirmed insofar as appealed from, with costs.
" 'Leave to amend or supplement pleadings should be freely granted unless the amendmentsought is palpably improper or insufficient as a matter of law, or unless prejudice and surprisedirectly result from the delay in seeking the amendment' " (Yemini v Goldberg, 46 AD3d 806 [2007], quoting Maloney Carpentry, Inc. v Budnik, 37AD3d 558, 558 [2007]; see CPLR 3025 [b]; Bajanov v Grossman, 36 AD3d 572, 573 [2007]). Here, theplaintiff demonstrated that the proposed amendment had merit given that an alleged violation ofLabor Law § 27-a may serve as a predicate to a cause of action pursuant to GeneralMunicipal Law § 205-e (seeWilliams v City of New York, 2 NY3d 352, 367 [2004]; Norman v City of New York, 60 AD3d830 [2009]; Campbell v City ofNew York, 31 AD3d 594 [2006]; Balsamo v City of New York, 287 AD2d 22,28 [2001]), and the appellant could not claim prejudice or surprise since the proposedamendments arose out of the same facts as those underlying the action (see Fisher v City of New York, 48AD3d 303, 304 [2008]; MaloneyCarpentry, Inc. v Budnik, 37 AD3d 558 [2007]; Huntington v Trotta AutoWreckers, 257 AD2d 647 [1999]). Accordingly, the Supreme Court providently exercised itsdiscretion in granting the plaintiff's motion for leave to amend his complaint.
The appellant's remaining contentions are without merit. Covello, J.P., Santucci, Balkin andAustin, JJ., concur.
Motion by the appellant on an appeal from an order of the Supreme Court, Suffolk County,dated January 25, 2010, to strike certain portions of the respondent's brief on the ground that theyrefer to matter dehors the record. By decision and order on motion of this Court dated June 4,2010, the motion was held in abeyance and referred to the panel of Justices hearing the appeal fora determination upon the argument or submission of the appeal.
Upon the papers filed in support of the motion, the papers filed in opposition thereto, andupon the argument of the appeal, it is
Ordered that the motion is granted, and those portions of the respondent's brief in footnote 2and on pages 16, 17, and 30, which refer to matter dehors the record are deemed stricken andhave not been considered in the determination of the appeal. Covello, J.P., Santucci, Balkin andAustin, JJ., concur.