Opinion
Index 101096/2014
12-07-2021
SAMIR JOUDEH, Plaintiff. v. JOANNE MAZZEL SALVATORE BLANDA AND CRISTIN CURRY. Defendants. SALVATORE BLANDA AND CHRISTINE CURRY. Third-Party Plaintiffs. v. SW RIAD CORP., Third-Party Defendant. SALVATORE BLANDA AND CHRISTINE CURR. Second Third-Party Plaintiffs. v. SW JOANN'S DEI.I INC., Second Third-Party Defendant.
Unpublished Opinion
ORDER AND DECISION
ORLANDO MARRAZZO, JR.. J.S.C.
The following papers. numbered EF3 to EF18. EF62 to EF64. and EF74 to EF87. read on Defendants', SALVATORE BLANDA ("Blanda”) and CRISTIN CURRY (“curry") (together. "Defendants"), motion to strike plaintiffs amended verified hill of particulars. and for summary judgment in their favoring dismissing the complaint pursuant to CPI .R 3212 (mot. seq. 05). as well as plaintiff's cross-motion for lea\'c to amend his complaint and hill of particulars. pursuant to CPLR 3025. and to deny defendants· motion to strike his amended hill of particulars and for summary judgment (mot. seq. 06). have been considered along with the points raised by the parties during oral argument.
Papers Filed Papers Numbered
Notice of Motion - Affidavits (Affirmations) -- Exhibits (Seq. 05) EF74-EF75
Notice of Cross-Motion - Affidavits (Affirmations) - Exhibits (Seq. 06) EF3-EF18
Answering Affidavit (Affirmation) - Exhibits _ EF62-EF64
Reply Affidavit (Affirmation) - Exhibits_ EF76-EF87
Upon the foregoing papers it is ordered that the defendants' motion and the plaintiffs cross-motion arc determined as follows:
Plaintiff in this negligence action seeks damages for personal injuries sustained on December 17. 2013. when it is alleged he slipped and fell on snow/ice at the defendants' premises located at 1373 Bay Street. Richmond. NY ("the premises").
The Parties' Arguments
Plaintiff alleged in his complaint and amended complaint that his accident occurred on the sidewalk adjacent to the premises. Plaintiffs bill of particulars ("BP") alleges the accident occurred in front of the premises. Plaintiff subsequently testified at his examination before trial ("EBT") that his accident occurred in the parking lot at the rear of the premises. Shortly after his EBT and the first EBT of defendant. Curry, the plaintiff served an amended BP. in which he alleged, inter alia, that his accident occurred in the parking lot at the back of the premises. Defendants rejected plaintiffs amended BP and thereafter moved for an order striking the same. and for summary judgment, alleging entitlement thereto because the amended BP contradicted the complaint and amended complaint, which in turn contradicted plaintiffs testimony. Defendants argued to strike the amended BP. claiming prejudice by having to accept the same, because of the plaintiffs delay in serving it. and because the statute of limitations ("SOE") had run.
Plaintiff then cross-moved for an order granting him leave to amend his complaint and. upon being granted leave, to deem the same, along with the amended BP, validly served upon defendants nunc pro lime, and denying defendants' motion. In so doing, plaintiff argued that the proposed amendment would cause defendants no prejudice since the changed location of plaintiff s accident remains on defendants' same premises, plaintiffs theory of liability remains unchanged. and defendants were apprised of the transactions and occurrences giving rise to the claim by the original complaint and amended complaint. Plaintiff also argued he promptly sought to amend his BP following his EBT and, while the proposed change came several years following the commencement of the action, discovery was in its infancy and the note of issue has not been filed. Plaintiff further argued the proposed amendment was supported by merit via plaintiffs undisputed testimony concerning the location of his accident. Finally, plaintiff argued that, if the proposed amendment were permitted, defendants' application for summary judgment is rendered moot.
In opposing plaintiffs cross-motion, defendants argued plaintiffs proposed amendment is devoid of merit because the proposed change is sought after the expiration of the SOE. and defendants are prejudiced in their ability to investigate the accident due to the death of a known witness in 2016 or 2017. They also reiterated their argument of entitlement to summary judgment since the allegations in plaintiff's pleadings did not match plaintiffs testimony.
On reply, plaintiff argued that, alter defendants tiled their motion, four additional party EBTs had taken place. and both, plaintiff and defendant. Curry, appeared for additional EBTs. Plaintiff further argued that the passing of the SOL did not render his proposed amended complaint and BP devoid of merit; rather, plaintiffs undisputed testimony supported the merit thereof. Moreover, plaintiff argued that defendants' argument of prejudice is feigned and/or self-imposed as defendants have been aware of the correct location of plaintiff s accident prior to the lawsuit being filed, defendants knew to question the now allegedly deceased witness well prior to his death, and because plaintiffs theory of liability remains unchanged.
Discussion
It is undisputed that the location of plaintiff s accident, as testified to during his EBT, is a different location on defendants' premises than is alleged in his complaint, amended complaint. and BP. Thus, defendants' contention that the evidence adduced during discover)' does not match plaintiffs pleadings is correct. It is also true that plaintiffs application for leave to amend his pleadings was first made after the expiration of the SOL pertaining to this case.
However. the mere fact that the SOL has run does not by itself render plaintiffs proposed amended complaint and BP palpably insufficient or clearly devoid of merit. See Vidal v. Claremont 99 Wall. LLC. 124 A.D.3d 767 (2d Dep't 2015). It is fundamental that "[l]eave to amend the pleadings 'shall be freely given' absent prejudice or surprise resulting directly from the delay." McCaske v. Davies and Assocs., Inc. v. New York City Health & Hasps. Corp., 59 N.Y.2d 755, 757 (1983). While a motion to amend should be made at the earliest possible moment to avoid prejudice, such motions can be made as late as the eve of trial or on appeal in the absence of significant prejudice (Bwack v. Burack, 122 A.D.2d 101 [2d Dep't 1986]). For a motion to amend a pleading to be denied, prejudice must be significant (Edenwald Contracting Co., Inc. v. City of New York. 60 N.Y.2d 957 [1983]). will not be presumed (Santiago v. County of Suffolk, 280 A.D.2d 594 [2d Dep't 2001]), and the burden of proof to establish prejudice explicitly lies with the party opposing the amendment (Lennon v. 56th and Park (NY) Owner, LLC, 199 A.D.3d 64 [2d Dep't 2021]). Moreover, mere lateness without significant prejudice is insufficient to deny the relief of a motion to amend a pleading (Krakovski v. Stavros Associates. LLC. 173 A.D.3d 1146 [2d Dep't 2019]). and. even where a delay in amending is "inordinate." this docs not inherently preclude amendment (Seda v. New York City Housing Authority. 181 A.D.2d 469 [1st Dep't 1992]). Simply put. "[a] party opposing leave to amend "must overcome a heavy presumption of validity in favor of [permitting amendment]."" Cortex v. Jing Jeng Hang, 143 A.D.3d 854 (2d Dep't 2016).
Where a party opposing an application for leave to amend a pleading argues prejudice, but presents no evidence as to what, if any. investigation it undertook and. therefore, how its investigation was hindered by the proposed amendment, such a part)' fails to adequately demonstrate prejudice. See Vidal v. Claremont 99 Wall. LLC. 124 A.D.3d 767 (2d Dep't 2015); Gonzalez v. New York City Housing Authority, 107 A.D.3d 471 (1st Dep't 2013). It must also be considered where the condition complained of is transient in nature, such as snow and ice as is the case here, this inherently renders a defendant's ability to investigate minimal following even a short passage of time. Cox v. City of Peeksill, 297 A.D.2d 735 (2d Dep't 2002).
Here plaintiff has demonstrated that his proposed amendment to his complaint and HP is not being made in bad faith, and seeks to correct the location of his accident, which remains on defendants' premises. Defendants, while arguing prejudice, have failed to demonstrate what specific efforts they undertook to investigate the accident and therefore how their investigation was hindered. It also appears that defendants could have ascertained the correct location of plaintiff's accident with minimal effort (see Vidul v. Cluremonl 99 Wall, LLC, supra, at 768), to the extent they were not explicitly aware of it before this action was filed. Defendant. Blanda. testified to having awareness of the plaintiffs accident within 2-3 weeks thereafter, and was aware that the now apparently deceased witness. John I.ovetro. had knowledge pertaining to the accident and the location where it occurred within the same timeframe. However, defendants failed to question this witness, who lived on defendants' premises, during the years prior to his death and after this litigation was commenced. Defendant. Curry, also wrote notes on a copy of the applicable lease indicating the correct location of the plaintiffs accident, which were in defendants' possession no later than October. 2015. and likely earlier, and which information she learned from a conversation between defendant. Blanda. and second third-party defendant. SW JOANN'S DELL INC.'s, witness. Wael Joudeh. Plaintiff also worked in the same deli where Wael Joudeh worked on defendants' premises, and they did not question him about his accident before this action was commenced despite being able to. Defendants also failed to timely make any efforts to depose the EMTs who found the plaintiff where he fell despite being in possession of the ambulance call report, which listed the location of plaintiffs accident, since 2015. Moreover, the defendants never presented any efforts showing they sought to depose Kim. the employee of the deli located on their premises, who was apparently present when plaintiffs accident occurred.
The Court notes that Defendants e-filed requests lo have subpoenas to depose these HM Is so-ordered on October 6, 2020 (EF 66-67), and again on November 30. 2021 (EF 88-89). Both of these efforts come at least live years after this action was filed.
Under these circumstances, it cannot be said that any prejudice to defendants, to the extent any exists, is traceable to the plaintiffs proposed amendment of his complaint and BP. See Wyso v. City of New York, 91 A.D.2d 661 (2d Dep't 1982) ("prejudice sufficient to defeat an amendment must be traceable 'to the omission from the original pleading of whatever it is the amended pleading wants to add").
Moreover, whether plaintiffs accident occurred on the sidewalk adjacent to defendants' premises or in the back parking lot that was undisputedly part of defendants' same premises, the obligation to keep both areas in a reasonably safe condition was defendants' alone. See Xiang Fu v. Troon Management. 34 N.Y.3d 167, 174 (2019): Peralla v. Henriquez, 100 N.Y.2d 139 (2003). Thus, plaintiffs proposed amendment does not alter the defendants' potential liability in this matter.
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 eliminate any material issues of fact from the ease. Winegrad v. New York University Medical Center, 64 N.Y.2d 851, 853 (1985). Here, defendants' motion for summary judgment is predicated less upon an evidentiary showing so as to eliminate all questions of fact but. rather, is premised on the contradiction between plaintiffs pleadings and his testimony as they pertain to the location of his accident on defendants' premises. If plaintiff is not permitted to amend his pleadings, it is axiomatic that his testimony cannot be reconciled with the allegations in his pleadings. However, given the foregoing analysis of plaintiffs cross-motion, in light of the absence of prejudice to the defendants, and considering the policy of this jurisdiction to resolve actions on their merits whenever possible (O.K. Petroleum Intl., Lid. v. Palmieri & Castiglione, LLP. 136 A.D.3d 767 [2d Dep't 2016]), it is ordered that defendants' motion is denied and plaintiffs cross-motion is granted.
Accordingly, it is
ORDERED that defendants'. Salvatore Blanda and Cristin Curry, motion, bearing motion sequence no. 05. to strike plaintiffs amended verified bill of particulars and granting defendants summary judgment is denied, and it is
ORDERED that plaintiffs cross-motion, bearing motion sequence no. 06, for leave to amend his complaint and bill of particulars and to deem the same served nunc pro limes granted.
This constitutes the Decision and Order of the Court.