Opinion
Index No. 23997/2018E Mtn. Seq. 2
09-04-2019
ROBINSON ROMAN, Plaintiff. v. PRC WESTCHESTER AVENUE LLC, PRC WESTCHESTER AVENUE MANAGING MEMBER LLC PROPERTY RESOURCES CORPORATION. PRC FOX STREET LLC. PRC FOX STREET MANAGING MEMBER LLC, PRC FOX STREET MODERATE II LLC. EOX-SIMPSON HOUSING DEVELOPMENT FUND CORPORATION, NEW YORK CITY HOUSING DEVELOPMENT CORPORATION, and THE BRIARWOOD ORGANIZATION LLC, Defendants. PRC FOX STREET, LLC FOX-SIMPSON HOUSING DEVELOPMENT FUND CORPORATION, and PRC FOX STREET MODERATE II LLC, Third-Party Plaintiffs, v. L. RISO &SONS CO., INC. and MELCARA CORP., Third-Party Defendants. L. RISO &SONS CO., INC., Second Third-Party Plaintiffs. v. ROCKAWAY CONTRACTING CORP.. Second Third-Party Defendants.
Unpublished Opinion
DECISION AND ORDER
LUCINDO SUAREZ, J.S.C.
Papers Numbered
Notice of Motion. Affirmation, Exhibits
1, 2, 3
Affirmation in Opposition and Cross Motion. Exhibits
4, 5
Affirmation in Partial Opposition
6
Affirmation in Partial Opposition
7
Upon the enumerated papers; and due deliberation: Plaintiff s motion is granted in part and Defendant Managing Member's Cross-Motion is denied, in accordance with the annexed decision and order.
The issue in Plaintiffs motion is whether leave should be given to allow Plaintiff to add parties to this action. The court finds that Plaintiff is entitled to leave to add parties as there is no showing that prejudice or surprise will result. In addition, the issue in Defendant PRC Westchester Avenue Managing Member. LLC's ("Managing Member"') cross-motion is whether Plaintiff s amended complaint should be dismissed pursuant to CPLR §3211(a)(7) for failure to state a cause of action.
Pursuant to CPLR §3025. a party may amend a pleading at any time by leave of court. A request to amend is determined in accordance with the general considerations applicable to such motion, including the statute's directive that leave "shall be freely given upon such terms as may be just." CPLR §3025(b); see also Kimso Apts., LLC v. Gandhi. 24 N.Y.3d 403, 23 N.E.3d 1008, 998 N.Y.S.2d 740 (2014). New York State Courts have consistently recognized that absent prejudice or surprise, courts are free to permit the amendment of pleadings. Id. Further, applications seeking leave to amend pleadings are within the sound discretion of the court. See Mack v. City of NY, 165 A.D.3d 443, 84 N.Y.S.3d 481 (1st Dep't 2018).
Plaintiff seeks to add Third-Party Defendant L. RISC & SONS CO., INC. as a direct defendant. Plaintiff argues L. RISO & SONS CO., INC. is the construction manager/general contractor, thus making it proper Labor Law Defendants. There is no opposition by any Defendant, therefore, the court sees no prejudice in adding the Third-Party Defendant as a direct defendant.
On cross-motion. Managing Member seeks to have Plaintiffs amended complaint dismissed as it argued that there are no specific allegations made against Managing Member. In determining a motion to dismiss made pursuant to CPLR §3211, the factual allegations in the complaint are assumed to be true, the plaintiff is to be accorded "the benefit of every possible favorable inference." and the court is to determine only whether the facts as alleged fit within any cognizable legal theory. Leon v. Martinez, 84 N.Y.2d 83, 638 N.E.2d 511.614 N.Y.S.2d 972 (1994).
In addition, CPLR §3013 provides, "statements in a pleading shall be sufficiently particular to give the court and parties notice of the transactions, occurrences, or series of transactions or occurrences, intended to be proved and the material elements of each cause of action or defense." The test to be applied to the sufficiency of pleadings is not whether the complaint has stated a cause of action but rather, upon examination of the four comers of the pleading, do the factual allegations contained therein indicate the existence of a cause of action. Melito v. Interboro- Mutual Indem. Ins. Co., 73 A.D.2d 819. 43 N.Y.2d 742 (4th Dep't 1979). Accepting the allegations as true. Plaintiff plead sufficient facts in his complaint to support a cognizable cause of action recognized in Labor Law against Managing Member. As such. Defendant Managing Member's cross-motion is denied.
Accordingly, it is
ORDERED, that Plaintiffs motion seeking to add parties is granted; and it is further
ORDERED, that the portion of Plaintiff s motion seeking costs and sanctions against the parties is denied; and it is further
ORDERED, that Defendant Managing Member's cross-motion to dismiss Plaintiffs amended complaint is denied; and it is further
ORDERED, that the caption of this action shall be amended to reflect the foregoing and all papers to be served and filed herein shall bear the following caption:
SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF BRONX: PART 19
ROBINSON ROMAN, Plaintiff.
against
PRC WESTCHESTER AVENUE LLC, PRC WESTCHESTER AVENUE MANAGING MEMBER LLC PROPERTY RESOURCES CORPORATION. PRC FOX STREET LLC, PRC FOX STREET MANAGING MEMBER LLC, PRC FOX STREET MODERATE II LLC, FOX-SIMPSON HOUSING DEVELOPMENT FUND CORPORATION, NEW YORK CITY HOUSING DEVELOPMENT CORPORATION, and THE BRIARWOOD ORGANIZATION LLC, L. RISO &SONS CO., INC., and MELCARA CORP., Defendants.
PRC FOX STREET, LLC FOX-SIMPSON HOUSING DEVELOPMENT FUND CORPORATION, and PRC FOX STREET MODERATE II LLC. Third-Party Plaintiffs.
against
L. RISO &SONS CO.. INC. and MELCARA CORP., Third-Party Defendants.
L. RISO &SONS CO., INC.. Second Third-Party Plaintiffs,
against
ROCKAWAY CONTRACTING CORP., Second Third-Party Defendants.
Index No.: 23997/2018E
and it is further
ORDERED, that within thirty (30) days after the date of this decision and order, Plaintiff shall serve and file a supplemental summons and amended complaint in the above form.
This constitutes the decision and order of the court.