Opinion
150347/2017
10-11-2019
Stanley HAYNES, Plaintiff, v. PENRITH URF LLC, Central Development Corp., CDC Housing, Inc., Eric & NG Electrical Inc., AMC Plumbing, Heating & Cooling, Inc., and City Housing Construction Corp. a/k/a City Housing Corporation, Defendants.
Jared C. Glugeth, Esq., Raphaelson Levine Law Firm P.C., 14 Penn Plaza, Suite 1718, New York, NY 10122, (646) 833-2350, Counsel for Plaintiff James F. Diviney, Esq., Baxter Smith & Shapiro PC, 99 North Broadway, Hicksville, NY 11801, (516) 997-7330, Counsel for Defendant AMC Plumbing Heating Cooling, Inc. Carlos Santos, Esq., Law Offices of Kevin P. Westerman, Elmsford, NY 10523, (914) 409-0144, Counsel for Defendant Eric & NG Electrical 565 Taxter Road, Suite 110 Vincent A. Brescia, Esq., Law Offices of Correia, King, McGinnis & Liferiedge, One Battery Park Plaza, 29th floor, New York, NY 10004, (212) 709-3155, Counsel for Proposed Defendant Dixon Advisory USA Inc. Jason Aaron, Esq., Fullerton Beck LLP, 1 West Red Oak Lane, White Plains, NY 10604, (914) 305-8638, Counsel for Defendant Penrith URF, LLC Thomas Reilly, Esq., Brody O'Connor and O'Connor, 535 Eighth Avenue, Suite 1401, New York, NY 10018, (212) 233-2505, Counsel for Defendant Central Development Corp. Leonard Rodney, Esq., 1565 Franklin Avenue, Suite 101, Mineola, NY 11501, (516) 498-1717, Counsel for Defendant City Housing Construction Corp.
Jared C. Glugeth, Esq., Raphaelson Levine Law Firm P.C., 14 Penn Plaza, Suite 1718, New York, NY 10122, (646) 833-2350, Counsel for Plaintiff
James F. Diviney, Esq., Baxter Smith & Shapiro PC, 99 North Broadway, Hicksville, NY 11801, (516) 997-7330, Counsel for Defendant AMC Plumbing Heating Cooling, Inc.
Carlos Santos, Esq., Law Offices of Kevin P. Westerman, Elmsford, NY 10523, (914) 409-0144, Counsel for Defendant Eric & NG Electrical 565 Taxter Road, Suite 110
Vincent A. Brescia, Esq., Law Offices of Correia, King, McGinnis & Liferiedge, One Battery Park Plaza, 29th floor, New York, NY 10004, (212) 709-3155, Counsel for Proposed Defendant Dixon Advisory USA Inc.
Jason Aaron, Esq., Fullerton Beck LLP, 1 West Red Oak Lane, White Plains, NY 10604, (914) 305-8638, Counsel for Defendant Penrith URF, LLC
Thomas Reilly, Esq., Brody O'Connor and O'Connor, 535 Eighth Avenue, Suite 1401, New York, NY 10018, (212) 233-2505, Counsel for Defendant Central Development Corp.
Leonard Rodney, Esq., 1565 Franklin Avenue, Suite 101, Mineola, NY 11501, (516) 498-1717, Counsel for Defendant City Housing Construction Corp.
Kathryn E. Freed, J.
The following e-filed documents, listed by NYSCEF document number (Motion 007) 201, 202, 203, 204, 207, 208, 209, 210, 211, 212, 213, 214, 215, 216, 217, 218 were read on this motion to/for
AMEND CAPTION/PLEADINGS
In this personal injury action by plaintiff Stanley Haynes against defendants Penrith URF LLC ("Penrith"), Central Development Corp. ("Central"), CDC Housing, Inc. ("CDC"), Eric & NG Electrical Inc. ("Eric"), and AMC Plumbing, Heating & Cooling ("AMC"), plaintiff moves, pursuant to CPLR 3025, to amend the summons and complaint to name as defendants Dixon Projects LLC ("DP"), Dixon Advisory Group, LTD ("DAG"), Dixon Realty Advisory, LLC d/b/a Pure Properties ("PP"), i/s/h/a Dixon Realty Advisory Group LLC d/b/a Pure Properties ("DRA"), US Masters Residential Property USA ("USMRP"), US Masters Residential Property Fund ("USMRPF"), Dixon Leasing ("DL"), Dixon Advisory USA Inc. ("DAUSA"), US Masters Residential (USA) Fund (USMRF"), and Canberra Raiders LLC ("Canberra").
FACTUAL AND PROCEDURAL BACKGROUND:
The facts of this case are set forth in detail in the order of this Court entered July 29, 2019, pursuant to which all claims against defendant American Stair Builders Corp. were dismissed and the caption was amended to reflect this dismissal. (Doc. 220). Any additional relevant facts are set forth below.
Plaintiff moves, pursuant to CPLR 3025, to amend the summons and complaint to name as defendants DP, DAG, DRA, USMRP, USMRPF, DL, DAUSA, USMRF, and Canberra. In an affirmation in support of the motion, plaintiff's counsel states that "your affiant through the discovery process and further investigation revealed at a defendant deposition on April 4, 2019 that the aforementioned entities were viable defendants in this action." Doc. 201, Aff. in Supp., at par. 6. Plaintiff's counsel further asserts that "[t]he interests of justice shall be served by the exercise of this Court's discretion in granting the amendment of the [s]ummons and [c]omplaint." Id. at par. 8.
Although not raised by the defendants, this Court notes that neither plaintiff's notice of motion nor the wherefore clause in the affirmation of plaintiff's counsel specifically requests that the complaint be amended to name the proposed additional defendants. Doc. 201. Nevertheless, this Court will entertain the request for said relief, to which plaintiff's counsel referred in the body of his affirmation in support.
In an affirmation in partial opposition, counsel for DAUSA argues that the complaint cannot be amended to name said entity because it was plaintiff's employer at the time of the alleged incident, plaintiff received workers' compensation benefits as a result of his claimed injuries, and he did not suffer, or even allege to have suffered, a "grave injury" within the meaning of Workers' Compensation Law § 11.In opposition to the motion, counsel for DAUSA submits a W-2 form reflecting that plaintiff was employed by that entity (Doc. 209); a decision of the Workers' Compensation Board, filed January 18, 2019, reflecting that plaintiff was employed by DAUSA and that he received workers' compensation benefits as a result of the alleged incident (Doc. 210); as well as a letter from DAUSA's attorney to plaintiff's attorney requesting that plaintiff withdraw that branch of the motion seeking to add DAUSA as a defendant. At oral argument, plaintiff's counsel withdrew that branch of the instant motion seeking to amend the complaint as against DAUSA.
In an affirmation in opposition, counsel for Penrith argues that, although leave to amend pleadings is generally freely granted, plaintiff's motion to amend the complaint to name DAG, DRA, and Canberra must be denied because the claims against those proposed additional defendants are without merit. Counsel asserts that, although plaintiff's co-worker, Michael Goff, testified at his deposition regarding entities with names similar to DAUSA, he was not familiar with their actual names or their roles at the premises. Additionally, counsel argues that the amendment would be prejudicial since the action was commenced in 2017 and significant discovery, including the depositions of plaintiff and Penrith, has already been conducted. Doc. 212.
In opposition to the motion, counsel submits four affidavits executed by Kevin McAvey. Doc. 213. McAvey executed the first affidavit in his capacity as Joint Chief Financial Officer of USMRPF, a Maryland real estate investment trust. He represents that USMRPF hired DAUSA to provide property management services at certain properties held by USMRPF, including the premises where plaintiff was allegedly injured. At no time did USMRPF own the premises, hire any contractors to work at the premises, hire any contractors or individuals to inspect the premises, have any involvement in the purchase of the property, or have any involvement with any construction at the property.
The second affidavit reflects that McAvey was authorized to execute the same on behalf of DAUSA, which was the sole member of DRA; that PP was a New Jersey real estate brokerage which did not own the premises; that PP did not hire any contractors to perform work at the premises; that PP did not hire any contractors or individuals to inspect the premises; that PP was not involved in the purchase of the property; and that PP had no involvement in the construction project at the premises. Doc. 213.
The third affidavit reflects that McAvey was authorized to execute the same on behalf of Canberra, a Delaware limited liability company established for the purpose of acquiring, holding and selling real estate; that Canberra did not own the premises; that it did not hire any contractors to work at the premises; that it did not hire any individuals or contractors to inspect the premises; that it was not involved in purchasing the property; and that it was not involved in the construction project at the premises. Doc. 213.
The fourth affidavit reflects that McAvey was authorized to execute the affidavit on behalf of the entity formerly known as DAG; that DAG was renamed ED Operations Pty Limited ("EDOP") in 2018; that EDOP is a wealth management firm based in Australia which does not operate in the United States; that EDOP did not own the premises; that EDOP did not hire any contractors to work at the premises; that EDOP did not hire any contractors or individuals to inspect the premises; that EDOP was no involved in the purchase of the property; and that it had no involvement in the construction project at the premises. Doc. 213.
In reply, plaintiff's counsel argues that, at his deposition on behalf of Penrith, Goff testified regarding DP, USMRP, DAUSA, and DL and represented that one of them was a parent company and that the rest were its subsidiaries. Counsel represents that Goff testified that these entities "work hand in hand together" with DP "in charge of the construction phase." Doc. 215 at par. 5. As a result of Goff's testimony, claims counsel, plaintiff learned that DAUSA is a member of the Evans Dixon Group, which includes numerous entities including, but not limited to, DP and DRA. Plaintiff also claims that to have learned that DAUSA, together with its subsidiaries, "manages every aspect of the real estate investment process" and that DP is a general contractor, DL is responsible for property management, and that USMRPF "acquires, renovates, and rents properties" in New York. Doc. 215 at par. 6.Thus, claims counsel, these parties "had and have direct involvement in the property where the subject incident took place." Id. At oral argument of the motion, counsel for Penrith agreed to allow plaintiff to amend the complaint to name DP.
Counsel further asserts that McAvey's affidavits do not address the roles of DP, DL, or USMRP at the premises and that the latter's affidavits do not warrant denial of the motion since they are contradictory. Specifically, counsel argues that, although McAvey represents that USMRPF neither owned, nor had any involvement with, the premises, he also states that USMRPF hired DAUSA to provide management services at that location.
Finally, plaintiff's counsel asserts that defendants will not be prejudiced by an amendment of the complaint at this juncture since significant discovery remains outstanding and the proposed additional defendants are related to defendant Penrith. Plaintiff's attorney annexes to the reply affirmation Goff's deposition transcript, as well as documents, which appear to be printed from DAU's website, reflecting that DAU is the manager of USMRPF, a real estate investment trust, operating in New York. Docs. 216, 217.
LEGAL CONCLUSIONS:
This Court has broad discretion to grant a party leave to supplement or amend its pleading to add new facts, circumstances, and parties. See Maor v. One Fifty Fifty Seven Corp. , 169 AD3d 497, 498 (1st Dept 2019). Whether to grant or deny a party's motion under CPLR 3025(b) is a matter to be determined in the discretion of the court. See Corsello v. Verizon New York Inc. , 18 NY3d 777 (2012). CPLR 3025(b) provides that leave to amend a pleading "shall be freely granted upon such terms as may be just." However, "such leave should ‘not be granted upon mere request, without appropriate substantiation.’ Brennan v. City of New York, 99 AD2d 445, 446 (1st Dept 1984)." Hoppe v. Bd. of Directors of the 51-78 Owners Corp. , 49 AD3d 477 (1st Dept 2008). Rather, a court "should exercise its discretion to deny a motion to amend where, as here, ‘the proposed new allegations [are] conclusory, speculative and unsupported by any evidentiary showing establishing the merits of the proposed pleading.’ Mestel & Company, Inc. v. Smythe, Masterson & Judd, Manda Weintraub , 181 AD2d 501, 502 (1st Dept 1992)." Rodgers v. Metro. Transp. Auth. , 2013 NY Slip Op 32543(U) (Sup Ct, NY County 2013).
Here, as noted above, plaintiff's counsel states in his affirmation in support of the motion that "your affiant through the discovery process and further investigation revealed at a defendant deposition on April 4, 2019 that the aforementioned entities were viable defendants in this action." Doc. 201, Aff. in Supp., at par. 6. However, counsel's cursory affirmation fails to state the identity of the deponent to whom he refers; what, if anything, the deponent said to warrant the amendment of the complaint to name additional defendants; or why the proposed defendants would be "viable" parties to the action." Additionally, although plaintiff's counsel represents that "[t]he interests of justice shall be served by the exercise of this Court's discretion in granting the amendment of the [s]ummons and [c]omplaint" (Doc. 201 at par. 8), he does not elaborate on this statement in any way. Indeed, since plaintiff's counsel did not submit Goff's deposition transcript and other documentation purporting to support its arguments until the time it submitted its reply affirmation, this Court declines to consider these materials. See Basden v. Liberty Lines Transit, Inc. , 142 AD3d 925 (1st Dept 2016).
This Court, in its discretion, thus denies the motion to amend the complaint to name as defendants DAG, DRA, USMRP, DL, USMRF, and Canberra. That branch of the motion seeking to name DAUSA as a defendant is denied as moot since plaintiff withdrew the same. The motion is granted as to DP, however, since there was no opposition to it being added as a defendant and it was revealed at oral argument of the instant motion that DP contracted with CDC, which was one of the contractors on the project. The motion is also granted as to USMRPF since McAvey admits in his affidavit that the said entity hired plaintiff's employer, DAUSA, to provide property management services at the premises.
Therefore, in light of the foregoing, it is hereby:
ORDERED that plaintiff's motion for leave to amend the complaint is granted to the extent of adding Dixon Projects LLC and US Masters Residential Property Fund as additional defendants; and it is further
ORDERED that the branch of the motion seeking to name Dixon Advisory Group, LTD, Dixon Realty Advisory, LLC d/b/a Pure Properties ("PP"), i/s/h/a Dixon Realty Advisory Group LLC d/b/a Pure Properties, US Masters Residential Property USA, Dixon Leasing, US Masters Residential (USA) Fund, and Canberra Raiders LLC as additional defendants is denied; and it is further
ORDERED that the branch of the motion seeking leave to name Dixon Advisory USA Inc. as an additional defendant is denied as moot; and it is further
ORDERED, that within 30 days from entry of this order, plaintiff shall serve a copy of this order with notice of entry and the amended complaint upon all parties who have appeared in the action; it is further
ORDERED, that a supplemental summons and amended complaint shall be served, in accordance with the Civil Practice Law and Rules, upon the additional party in this action within 30 days after service of a copy of this order with notice of entry; and it is further
ORDERED, that the action shall hereinafter bear the following caption:
STANLEY HAYNES, Plaintiff,
v
PENRITH URF LLC, CENTRAL DEVELOPMENT CORP., CDC HOUSING, INC., ERIC & NG ELECTRICAL INC., AMC PLUMBING, HEATING & COOLING, INC., and CITY HOUSING CONSTRUCTION CORP. A/K/A CITY HOUSING CORPORATION, DIXON PROJECTS LLC, and US MASTERS RESIDENTIAL PROPERTY FUND, Defendants.
and it is further
ORDERED that plaintiff's counsel shall serve a copy of this order with notice of entry upon the County Clerk (60 Centre Street, Room 141B) and the Clerk of the General Clerk's Office (60 Centre Street, Room 119), who are directed to mark the court's records to reflect the amendment of the summons and complaint to name Dixon Projects LLC and US Masters Residential Property Fund as defendants; and it is further
ORDERED, that such service upon the County Clerk and the Clerk of the General Clerk's Office shall be made in accordance with the procedures set forth in the Protocol on Courthouse and County Clerk Procedures for Electronically Filed Cases (accessible at the "E-Filing" page on the court's website at the address www.nycourts.gov/supctmanh); and it is further
ORDERED that the parties are to appear for a previously scheduled status conference in this matter on December 17, 2019 at 80 Centre Street, Room 280, at 2:15 p.m.; and it is further
ORDERED that this constitutes the decision and order of the court.