Opinion
12328 Index No. 20469/18E Case No. 2019-5643
11-10-2020
James SORGE, Plaintiff–Respondent, v. GONA REALTY, LLC, et al., Defendants–Appellants.
McNamara & Horowitz LLP, New York (David Paul Horowitz of counsel), for appellants. Patterson Belknap Webb & Tyler, New York (Nathan Monroe–Yavneh of counsel), for respondent.
McNamara & Horowitz LLP, New York (David Paul Horowitz of counsel), for appellants.
Patterson Belknap Webb & Tyler, New York (Nathan Monroe–Yavneh of counsel), for respondent.
Friedman, J.P., Renwick, Oing, Mendez, JJ.
Order, Supreme Court, Bronx County (Norma Ruiz, J.), entered June 24, 2019, which denied defendants' motion to dismiss the complaint and granted plaintiff's cross motion to amend his pleadings, unanimously affirmed, with costs.
For the purpose of a pre-answer motion to dismiss the complaint alleging violations of the New York State and City Human Rights Laws, plaintiff sufficiently alleged that he was employed by defendants (see Vig v. New York Hairspray Co., L.P., 67 A.D.3d 140, 145, 885 N.Y.S.2d 74 [1st Dept. 2009] ). The evidence submitted by defendants did not conclusively establish that during the relevant time period they had fewer than four employees so that they were not "employers" under the State and City Human Rights Laws (see Francis v. Eisenbeiss, 101 A.D.3d 414, 955 N.Y.S.2d 23 [1st Dept. 2012] ).
The cross motion to amend was properly granted. Contrary to the defendants' contention, CPLR 3014 specifically authorizes pleading of inconsistent theories and defenses (see CPLR 3014 ; Kerzhner v. G4S Govt. Solutions, Inc., 138 A.D.3d 564, 565, 30 N.Y.S.3d 620 [1st Dept. 2016] ). Moreover, on a motion for leave to amend, plaintiff does not need to establish the merit of his proposed new allegations, but show that the proffered amendment is not "palpably insufficient or clearly devoid of merit," which plaintiff has done here (see MBIA Ins. Corp. v. Greystone & Co., Inc., 74 A.D.3d 499, 500, 901 N.Y.S.2d 522 [1st Dept. 2010] ).
We have reviewed defendants' contentions and find them unavailing.