Opinion
2019–07569 Index No. 611762/17
08-05-2020
Marvin J. BLANCO GOMEZ, Appellant-Respondent, v. Brian PRINCIPE, et al., Respondents-Appellants.
Gene Duen~as, J.D., P.C., Hempstead, NY, for appellant-respondent. Charles F. Harms, Jr., Garden City, N.Y. (Russell M. Plotkin of counsel), for respondents-appellants.
Gene Duen~as, J.D., P.C., Hempstead, NY, for appellant-respondent.
Charles F. Harms, Jr., Garden City, N.Y. (Russell M. Plotkin of counsel), for respondents-appellants.
RUTH C. BALKIN, J.P., SYLVIA O. HINDS–RADIX, COLLEEN D. DUFFY, VALERIE BRATHWAITE NELSON, JJ.
DECISION & ORDER
In an action to recover damages for personal injuries, the plaintiff appeals, and the defendants cross-appeal, from an order of the Supreme Court, Nassau County (Arthur M. Diamond, J.), entered May 20, 2019. The order, insofar as appealed from, denied the plaintiff's cross motion for leave to amend the complaint and bill of particulars to allege a violation of Labor Law § 200. The order, insofar as cross-appealed from, denied that branch of the defendants' motion which was for summary judgment dismissing the complaint.
ORDERED that the order is reversed insofar as appealed from, on the law, and the plaintiff's cross motion for leave to amend the complaint and bill of particulars to allege a violation of Labor Law § 200 is granted; and it is further,
ORDERED that the order is affirmed insofar as cross-appealed from; and it is further,
ORDERED that one bill of costs is awarded to the plaintiff.
The plaintiff allegedly was injured when he stepped in a hole on the defendants' property. The plaintiff commenced this action to recover damages for personal injuries based on the defendants' alleged negligence. After the close of discovery, the defendants moved, inter alia, for summary judgment dismissing the complaint. The plaintiff opposed the defendants' motion and cross-moved to amend the complaint and bill of particulars to allege a violation of Labor Law § 200. The Supreme Court denied the plaintiff's cross motion and that branch of the defendants' motion which was for summary judgment dismissing the complaint. The plaintiff appeals, and the defendants cross-appeal.
We agree with the Supreme Court's determination denying that branch of the defendants' motion which was for summary judgment dismissing the complaint. The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact (see Alvarez v. Prospect Hosp. , 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572 ; Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642 ). The failure to make such a prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers (see Alvarez v. Prospect Hosp., 68 N.Y.2d at 324, 508 N.Y.S.2d 923, 501 N.E.2d 572 ; Winegrad v. New York Univ. Med. Ctr. , 64 N.Y.2d at 853, 487 N.Y.S.2d 316, 476 N.E.2d 642 ). Here, the defendants' submissions failed to eliminate triable issues of fact with respect to their constructive notice of the hole (see Merchant v. New York City Tr. Auth. , 183 A.D.3d 647, 121 N.Y.S.3d 651 ; Baez v. Willow Wood Assoc., LP , 159 A.D.3d 785, 785–786, 69 N.Y.S.3d 814 ). The defendants' remaining contention regarding their motion is without merit.
We disagree, however, with the Supreme Court's determination denying the plaintiff's cross motion for leave to amend the complaint and bill of particulars to allege a violation of Labor Law § 200. "[L]eave should be given where the amendment is neither palpably insufficient nor patently devoid of merit, and the delay in seeking amendment does not prejudice or surprise the opposing party" ( US Bank, N.A. v. Primiano , 140 A.D.3d 857, 857, 32 N.Y.S.3d 643 ; see CPLR 3025[b] ; HSBC Bank v. Picarelli , 110 A.D.3d 1031, 1032, 974 N.Y.S.2d 90 ). "Mere lateness is not a barrier to the amendment. It must be lateness coupled with significant prejudice to the other side" ( Edenwald Contr. Co. v. City of New York , 60 N.Y.2d 957, 959, 471 N.Y.S.2d 55, 459 N.E.2d 164 [internal quotation marks omitted]; see Nationstar Mtge., LLC v. Jean–Baptiste , 178 A.D.3d 883, 886, 114 N.Y.S.3d 402 ; U.S. Bank, N.A. v. Sharif , 89 A.D.3d 723, 724, 933 N.Y.S.2d 293 ).
Here, the plaintiff's proposed amendment is not palpably insufficient or patently devoid of merit (see U.S. Bank, N.A. v. Sharif , 89 A.D.3d at 724–725, 933 N.Y.S.2d 293 ). Additionally, the defendant did not demonstrate that any prejudice or surprise would result from the amendment. Accordingly, the Supreme Court should have granted the plaintiff's cross motion for leave to amend the complaint and bill of particulars.
BALKIN, J.P., HINDS–RADIX, DUFFY and BRATHWAITE NELSON, JJ., concur.