| Faiella v Tysens Park Apts., LLC |
| 2013 NY Slip Op 07008 [110 AD3d 1028] |
| October 30, 2013 |
| Appellate Division, Second Department |
| Madeline Faiella, Respondent, v Tysens ParkApartments, LLC, et al., Appellants. |
—[*1] Robert A. Flaster, P.C., New York, N.Y. (Jonathan A. Fier of counsel), forrespondent.
In an action to recover damages for personal injuries, the defendants appeal, aslimited by their notices of appeal and brief, from so much of an order of the SupremeCourt, Kings County (Bunyan, J.), dated July 25, 2012, as denied those branches of theirrespective motions which were pursuant to CPLR 3211 (a) (5) and (7) to dismiss thecomplaint insofar as asserted against each of them, and granted that branch of theplaintiff's cross motion which was pursuant to CPLR 3025 (b) for leave to amend thecomplaint.
Ordered that the order is affirmed insofar as appealed from, with costs.
On August 21, 2010, the plaintiff allegedly was injured in the parking lot of anapartment building owned and operated by the defendants Tysens Park Apartments,LLC, and Apartment Management Associates, LLC. According to the plaintiff, thedefendant Lorraine Sweeper, a security officer employed by the defendant Park AvenueSecurity South, Inc., which provided security services at the subject location, abruptlymoved a shopping cart the plaintiff was using to unload items, causing the plaintiff tobecome startled, lose her balance, and fall to the ground. In November 2011, the plaintiffcommenced this action.
The Supreme Court properly denied those branches of the separate motions of thedefendants Park Avenue Security South, Inc., and Lorraine Sweeper, and the defendantsTysens Park Apartments, LLC, and Apartment Management Associates, LLC, whichwere pursuant to CPLR 3211 (a) (5) and (7) to dismiss the complaint insofar as assertedagainst each of them. "In classifying a cause of action for statute of limitations purposes,the controlling consideration is not the form in which the cause of action is stated, but itssubstance" (Rutzinger v Lewis, 302 AD2d 653, 654 [2003]; see Tong v Target, Inc., 83AD3d 1046 [2011]). Contrary to the defendants' contentions, the complaint, insubstance, alleged a negligence cause of action; it did not allege the intentional tort ofassault and battery. As such, the complaint was not time-barred, as it was governed bythe three-year statute of limitations applicable to negligence (see CPLR 214 [5];Schrank v Lederman, 52AD3d 494, 496 [2008]), not the one-year statute of limitations applicable to assaultand battery (see CPLR 215 [3]). The defendants' further contention that theallegations in the complaint failed to state a cause of action to recover damages fornegligent hiring and supervision is without merit, as that cause of action is not requiredto be pleaded with specificity (see Selechnik v Law Off. of Howard R. Birnbach,82 [*2]AD3d 1077, 1079-1080 [2011]; Porcelli v Key Food Stores Co-Op.,Inc., 44 AD3d 1020, 1021-1022 [2007]; Mantione v Crazy Jakes, Inc., 101 AD3d 1719, 1720[2012]).
The Supreme Court providently exercised its discretion in granting that branch of theplaintiff's cross motion which was pursuant to CPLR 3025 (b) for leave to amend thecomplaint. Leave to amend a pleading should be freely given absent prejudice or surpriseto the opposing party, unless the proposed amendment is palpably insufficient or patentlydevoid of merit (see CPLR 3025 [b]; Carroll v Motola, 109 AD3d 629 [2013]; Finkelstein v Lincoln Natl.Corp., 107 AD3d 759, 761 [2013]; Lucido v Mancuso, 49 AD3d 220, 227 [2008]). Moreover,a court shall not examine the legal sufficiency or merits of a pleading unless suchinsufficiency or lack of merit is clear and free from doubt (see Lucido vMancuso, 49 AD3d at 227). Here, the proposed amended complaint was neitherpalpably insufficient nor patently devoid of merit. In addition, the defendants wereneither prejudiced nor surprised by the proposed amended complaint as it merelyclarified the existing negligence cause of action.
The defendants' remaining contention is without merit. Dillon, J.P., Dickerson, Halland Austin, JJ., concur.