| Ciminello v Sullivan |
| 2014 NY Slip Op 06048 [120 AD3d 1176] |
| September 10, 2014 |
| Appellate Division, Second Department |
[*1]
| George A. Ciminello, Appellant, v Brian C.Sullivan et al., Respondents, et al., Defendants. |
Gruenberg Kelly Della, Ronkonkoma, N.Y. (Zachary M. Beriloff of counsel), forappellant.
Breen & Clancy, Hauppauge, N.Y. (Anne Marie Cardonna of counsel), forrespondents Brian C. Sullivan and Gerard E. Sullivan.
Robert Hartford, Holbrook, N.Y., respondent pro se.
In an action, inter alia, to recover damages for personal injuries, the plaintiff appeals,as limited by his brief, from so much of an order of the Supreme Court, Suffolk County(Baisley, Jr., J.), dated July 20, 2011, as granted the motion of the defendant RobertHartford to dismiss the second amended complaint insofar as asserted against him asuntimely, granted that branch of the separate motion of the defendants Brian C. Sullivanand Gerard E. Sullivan which was to dismiss the second amended complaint insofar asasserted against them as untimely, denied his cross motion pursuant to CPLR 3025 (b)for leave to file a second amended complaint, and denied his cross motion for leave torenew and reargue his opposition to the prior motion of the defendants Brian C. Sullivanand Gerard E. Sullivan, and the separate motion of the defendant Robert Hartford, whichwere to dismiss the first amended complaint insofar as asserted against each of them.
Ordered that the appeal from so much of the order as denied that branch of the
plaintiff's cross motion which was for leave to reargue is dismissed, as no appeal liesfrom the denial of a motion for leave to reargue; and it is further,
Ordered that the order is modified, on the law, (1) by deleting the provision thereofdenying that branch of the plaintiff's cross motion which was for leave to file a secondamended complaint, in effect, to add a cause of action to recover damages sounding inintentional tort and substituting therefor a provision granting that branch of the crossmotion, and (2) by deleting the provisions thereof granting those branches of the separatemotions of the defendants Brian C. Sullivan and Gerard E. Sullivan, and the defendantRobert Hartford, which were to dismiss the cause of action to recover damages soundingin intentional tort asserted in the second amended complaint insofar as asserted againstthe defendants Brian C. Sullivan and Robert Hartford as untimely, and substitutingtherefor provisions denying those branches of the separate motions; as so modified, theorder is affirmed insofar as reviewed; and it is further,
Ordered that one bill of costs is awarded to the plaintiff, payable by the [*2]respondents appearing separately and filing separatebriefs.
The plaintiff, without leave of court, served and filed a second amended complaint.The defendant Robert Hartford moved to dismiss the second amended complaint insofaras asserted against him as untimely, and the defendants Brian C. Sullivan and Gerard E.Sullivan (hereinafter together the Sullivan defendants) moved, inter alia, for similarrelief. The plaintiff cross-moved pursuant to CPLR 3025 (b) for leave to file the secondamended complaint. The Supreme Court, among other things, granted Hartford's motionand the related branch of the Sullivan defendants' motion, and denied the plaintiff's crossmotion.
Leave to amend a pleading shall be freely given absent prejudice or surprise to theopposing party, unless the proposed amendment is palpably insufficient or patentlydevoid of merit (see CPLR 3025 [b]; Finkelstein v Lincoln Natl. Corp., 107 AD3d 759, 761[2013]; Lucido v Mancuso,49 AD3d 220, 222 [2008]). Here, the Supreme Court properly determined that thecauses of action in the second amended complaint sounding in negligence were palpablyinsufficient and patently devoid of merit (see generally Ciminello v Sullivan, 65 AD3d 1002 [2009]).However, the plaintiff also proposed an amendment to add a cause of action whichalleged facts setting forth a cognizable cause of action to recover damages sounding inintentional tort. This cause of action is not palpably insufficient or patently devoid ofmerit, and there is no evidence that this amendment would prejudice or surprise Brian C.Sullivan and Hartford (seeUnited Fairness, Inc. v Town of Woodbury, 113 AD3d 754, 755 [2014]; see generally Lucido vMancuso, 49 AD3d 220 [2008]). Although the plaintiff delayed in making themotion for leave to amend, mere lateness is not a barrier to the amendment—itmust be lateness coupled with significant prejudice to the other side (see Henry v MTA, 106 AD3d874, 875 [2013]; AuroraLoan Servs., LLC v Dimura, 104 AD3d 796, 797 [2013]; U.S. Bank, N.A. v Sharif, 89AD3d 723, 724 [2011]). Brian C. Sullivan and Hartford cannot claim significantprejudice, since the proposed amendment arises out of the same facts as those set forth inthe first amended complaint (seeKoenig v Action Target, Inc., 76 AD3d 997, 997-998 [2010]; Maloney Carpentry, Inc. vBudnik, 37 AD3d 558, 558 [2007]). Accordingly, the Supreme Court shouldhave granted that branch of the plaintiff's cross motion which was for leave to file asecond amended complaint, in effect, to add a cause of action to recover damagessounding in intentional tort and should have denied those branches of the separatemotions of the Sullivan defendants and Hartford which were to dismiss the cause ofaction to recover damages sounding in intentional tort asserted in the second amendedcomplaint insofar as asserted against Brian C. Sullivan and Hartford.
The plaintiff's remaining contentions either are academic or need not be reached inlight of our determination. Rivera, J.P., Balkin, Dickerson and Cohen, JJ., concur.