| Mastrokostas v 673 Madison, LLC |
| 2013 NY Slip Op 05558 [109 AD3d 459] |
| August 7, 2013 |
| Appellate Division, Second Department |
| Nikolaos Mastrokostas, Appellant, v 673 Madison,LLC, Respondent. |
—[*1] Thomas D. Hughes, New York, N.Y. (Richard C. Rubinstein of counsel), forrespondent.
In an action to recover damages for personal injuries, the plaintiff appeals from anorder of the Supreme Court, Kings County (Solomon, J.), dated October 2, 2012, whichgranted the defendant's motion for summary judgment dismissing the complaint anddenied his cross motion for leave to amend the complaint to include a cause of actionalleging a violation of Labor Law § 376.
Ordered that the order is affirmed, with costs.
The plaintiff allegedly fell into an open trap door during the course of hisemployment at a restaurant, and commenced this action against the defendant, whichowned the premises. The defendant moved for summary judgment dismissing thecomplaint, contending that it was an out-of-possession landlord that could not be heldliable for the plaintiff's injuries. The plaintiff cross-moved for leave to amend thecomplaint to include a cause of action alleging a violation of Labor Law § 376.The Supreme Court granted the defendant's motion and denied the plaintiff's crossmotion.
The defendant established its prima facie entitlement to judgment as a matter of lawby demonstrating that it was out-of-possession landlord that retained no control over thepremises where the plaintiff's accident occurred, and was not obligated by contract orstatute to maintain or repair the premises (see O'Connell v L.B. Realty Co., 50 AD3d 752 [2008];Kramer v Ash Clothing, 213 AD2d 600 [1995]). In opposition, the plaintifffailed to raise a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320[1986]). Accordingly, the Supreme Court properly granted the defendant's motion forsummary judgment dismissing the complaint.
With respect to the plaintiff's cross motion, applications for leave to amend pleadingsshould be freely granted except when the delay in seeking leave to amend would directlycause undue prejudice or surprise to the opposing party, or when the proposedamendment is palpably insufficient or patently devoid of merit (see CPLR 3025[b]; Ramos v Baker, 91AD3d 930, 932 [2012]; [*2]Fusca v A & S Constr.,LLC, 84 AD3d 1155, 1157 [2011]; Lucido v Mancuso, 49 AD3d 220, 229 [2008]). Here, theSupreme Court properly denied the plaintiff's motion for leave to amend the complaintsince the proposed amendment was patently devoid of merit (see CPLR 3025[b]). Eng, P.J., Balkin, Roman and Miller, JJ., concur.