| Padin v City of New York |
| 2013 NY Slip Op 00724 [103 AD3d 614] |
| February 6, 2013 |
| Appellate Division, Second Department |
| Ricardo Padin, Appellant, v City of New York etal., Defendants. |
—[*1] Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Pamela SeiderDolgow, Margaret King, and Simcha Baruch Rivkin of counsel), for defendant City ofNew York.
In an action to recover damages for personal injuries, the plaintiff appeals, as limitedby his brief, from so much of an order of the Supreme Court, Kings County (Sherman,J.), dated May 13, 2011, as denied his unopposed cross motion for leave to serve anamended complaint to add a cause of action pursuant to General Municipal Law §205-e against the defendants City of New York and Antonio J. Martinez.
Ordered that the order is reversed insofar as appealed from, on the law and in theexercise of discretion, with costs payable by the defendant City of New York, theplaintiff's cross motion for leave to amend the complaint is granted, and the proposedamended complaint is deemed served.
The plaintiff, a police lieutenant employed by the New York City Police Department,was injured in a motor vehicle accident while a passenger in a police vehicle driven bythe defendant Antonio J. Martinez, a fellow police officer, who was responding to aburglary in progress. The plaintiff commenced the instant action to recover damages fornegligence. After discovery, the defendants City of New York and Martinez (hereinaftertogether the City defendants) moved for summary judgment dismissing, insofar asasserted against them, the original complaint in this action, which only set forth onecause of action, sounding in common-law negligence. The plaintiff cross-moved forleave to serve an amended complaint alleging a cause of action against the Citydefendants to recover damages pursuant to General Municipal Law § 205-e,predicated upon a violation of Vehicle and Traffic Law § 1104. The Citydefendants submitted no opposition to the cross motion. The Supreme Court granted thatbranch of the City defendants' motion which was for summary judgment dismissing thecomplaint insofar as asserted against the City on the ground that the firefighter's rule(General Obligations Law § 11-106 [1]) barred the plaintiff's common-lawnegligence cause of action against the City, since the City is his employer. The SupremeCourt also denied the plaintiff's cross motion for leave to serve an amended complaint.The plaintiff appeals from so much of the order as denied his cross motion for leave toserve an amended complaint.[*2]
Pursuant to CPLR 3025 (b), leave to amend apleading "shall be freely given upon such terms as may be just." Here, the Supreme Courtimprovidently exercised its discretion in denying the plaintiff's cross motion for leave toserve the proposed amended complaint. The proposed amendment was neither palpablyinsufficient nor patently devoid of merit, and there was no evidence that the amendment,which merely added a new theory of recovery rather than alleging new or differenttransactions or occurrences, would prejudice or surprise the defendants (see Medical Arts Off. Servs., Inc. vErber, 89 AD3d 698 [2011]; Lucido v Mancuso, 49 AD3d 220 [2008]; Beverage Mktg. USA, Inc. v SouthBeach Beverage Co., Inc., 20 AD3d 439 [2005]).
The City's argument that it nonetheless would be entitled to summary judgmentdismissing the newly added cause of action to recover damages pursuant to GeneralMunicipal Law § 205-e, predicated upon a violation of Vehicle and Traffic Law§ 1104, is not properly before this Court, as the City failed to raise that issuebefore the Supreme Court. Balkin, J.P., Roman, Sgroi and Cohen, JJ., concur.