| Vidal v Claremont 99 Wall, LLC |
| 2015 NY Slip Op 00529 [124 AD3d 767] |
| January 21, 2015 |
| Appellate Division, Second Department |
[*1]
| Tito Vidal, Appellant, v Claremont 99 Wall,LLC, Defendant, and T-Mobile USA, Inc., Respondent, et al., Proposed AdditionalDefendant. |
Ginsberg & Wolf, P.C., New York, N.Y. (Martin Wolf of counsel), forappellant.
Conway, Farrell, Curtin & Kelly P.C., New York, N.Y. (Jonathan T. Uejio ofcounsel), for respondent.
Baker Greenspan & Bernstein, Bellmore, N.Y. (Robert Bernstein, Jr., andDouglas Tischler of counsel), for proposed additional defendant.
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 (Bayne, J.),entered February 24, 2014, as denied that branch of his motion which was for leave toamend the complaint and bill of particulars with regard to the location of the subjectaccident.
Ordered that the order is reversed insofar as appealed from, on the law, on the facts,and in the exercise of discretion, with costs payable by the defendant T-Mobile USA,Inc., and that branch of the plaintiff's motion which was for leave to amend the complaintand bill of particulars with regard to the location of the subject accident is granted.
On January 16, 2009, the plaintiff was working as a drywall finisher/painter fornonparty Schimenti Construction Company, which was performing construction workinside certain premises on behalf of the defendant T-Mobile USA, Inc. (hereinafterT-Mobile). The plaintiff allegedly sustained injuries when a scaffold he was standing oncollapsed, causing him to fall several feet to the floor.
On July 22, 2011, the plaintiff commenced the instant action. The plaintiff allegedthat the subject accident occurred at 99 Wall Street, and he sought to recover damagesfor personal injuries from T-Mobile and the defendant Claremont 99 Wall Street, LLC,the owner of the 99 Wall Street premises. The plaintiff's bill of particulars also set forththat the subject accident occurred at the 99 Wall Street premises.
However, on April 15, 2013, at the plaintiff's deposition, it was disclosed that thesubject accident did not occur at the 99 Wall Street premises, but rather, occurred atanother building where a T-Mobile store was being constructed, located at 125 MaidenLane. The plaintiff thereafter [*2]moved, inter alia,pursuant to CPLR 3025 (b), for leave to amend the complaint and bill of particulars tocorrect the address of the premises at which the subject accident occurred. OnlyT-Mobile submitted opposition to that branch of the motion. The Supreme Court deniedthat branch of the plaintiff's motion.
Leave to amend pleadings pursuant to CPLR 3025 (b) should be freely given,provided that the proposed amendment does not prejudice or surprise the opposing partyand is not palpably insufficient or patently devoid of merit (see Edenwald Contr. Co.v City of New York, 60 NY2d 957 [1983]; Schelchere v Halls, 120 AD3d 788 [2014]). "Latenessalone is not a barrier to the amendment" (Carducci v Bensimon, 115 AD3d 694, 695 [2014]). "Itmust be lateness coupled with significant prejudice to the other side, the very elements ofthe laches doctrine" (Edenwald Contr. Co. v City of New York, 60 NY2d at 959[internal quotation marks omitted]; see HSBC Bank v Picarelli, 110 AD3d 1031, 1032[2013]).
In the instant action, it is undisputed that the proposed amendment was neitherpalpably insufficient nor patently devoid of merit. The only source of challenge is thelateness of the proposed amendment coupled with alleged prejudice. However, T-Mobilefailed to establish prejudice (seegenerally Lucido v Mancuso, 49 AD3d 220 [2008]), and thus, the SupremeCourt erred in denying leave to amend the complaint and bill of particulars. T-Mobiledoes not deny that it was constructing a store at 125 Maiden Lane using the plaintiff'semployer as a contractor. With minimal effort upon receiving a complaint regarding theconstruction of a store in downtown Manhattan, T-Mobile could have ascertained thelocation of the subject accident. The original complaint plainly sets forth that the plaintiffwas an employee of Schimenti Construction Company, which was performingconstruction work at the premises where the plaintiff was injured. Significantly, thedefendants did not submit any evidence to the Supreme Court regarding anyinvestigation they undertook. T-Mobile failed to demonstrate that it was impeded ininvestigating the plaintiff's claim, or that it undertook an investigation at the wrong site.T-Mobile simply relied on its counsel's unsubstantiated averment of prejudice (see Hernandez v City ofYonkers, 74 AD3d 1025, 1026-1027 [2010]). Furthermore, despite T-Mobile'scontention to the contrary, there is no prejudice that can be suffered by T-Mobile as aresult of the statute of limitations having expired on the plaintiff's direct claim as againstthe owner of the 125 Maiden Lane premises. The fact that the plaintiff's claim against theowner of the 125 Maiden premises was time-barred did not preclude a claim forcontribution or contractual indemnity by T-Mobile. Such a claim accrues at the time ofpayment of an underlying claim and is subject to a six-year limitations period (seeCPLR 213, 1401; Tedesco vA.P. Green Indus., Inc., 8 NY3d 243 [2007]; Bay Ridge Air Rights v Stateof New York, 44 NY2d 49 [1978]; Ruiz v Griffin, 50 AD3d 1007, 1010 [2008]).
The parties' remaining contentions are without merit.
Accordingly, the Supreme Court should have granted that branch of the plaintiff'smotion which was for leave to amend the complaint and bill of particulars with regard tothe location of the subject accident (see Boivin v Marrano/Marc Equity Corp., 78 AD3d 1568,1568-1569 [2010]; Hernandez vCity of Yonkers, 74 AD3d 1025 [2010]). Rivera, J.P., Hall, Austin and Cohen,JJ., concur.