Opinion
2018–12786 Index No. 709885/14
05-06-2020
Victor Chang Hwan PARK, Plaintiff-Respondent, v. HOME DEPOT U.S.A., INC., et al., Defendants-Respondents, Nu–Tek Roof Systems, Inc., Appellant.
Gerber Ciano Kelly Brady LLP, Garden City, N.Y. (Robert W. Berbenich of counsel), for appellant. William Schwitzer & Associates, P.C., New York, N.Y. (Allen Zachary of counsel), for plaintiff-respondent.
Gerber Ciano Kelly Brady LLP, Garden City, N.Y. (Robert W. Berbenich of counsel), for appellant.
William Schwitzer & Associates, P.C., New York, N.Y. (Allen Zachary of counsel), for plaintiff-respondent.
REINALDO E. RIVERA, J.P., MARK C. DILLON, ROBERT J. MILLER, BETSY BARROS, JJ.
DECISION & ORDER
ORDERED that the order is affirmed, with one bill of costs payable to the plaintiff-respondent.
The plaintiff allegedly was injured when he slipped down a ladder while working at a Home Depot store. He subsequently commenced two actions alleging that the accident occurred on October 1, 2014, and was the result of the defendants' negligence and violations of the Labor Law. The actions were later consolidated. The complaint naming Nu–Tek Roof Systems, Inc. (hereinafter Nu–Tek), as a defendant was dated March 24, 2015. The plaintiff subsequently moved for leave to amend the complaint to correct the date of the accident, and the court granted the motion. Nu–Tek appeals.
A motion for leave to amend a pleading may be made "at any time," and "[l]eave shall be freely given upon such terms as may be just" ( CPLR 3025[b] ). The determination to permit or deny the amendment is committed to the sound and broad discretion of the trial court (see Kimso Apts., LLC v. Gandhi, 24 N.Y.3d 403, 411, 998 N.Y.S.2d 740, 23 N.E.3d 1008 ; 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 ), and its determination will not lightly be set aside (see Nanomedicon, LLC v. Research Found. of State Univ. of N.Y., 129 A.D.3d 684, 685, 10 N.Y.S.3d 552 ; Ingrami v. Rovner, 45 A.D.3d 806, 808, 847 N.Y.S.2d 132 ).
Delay alone is insufficient to bar an amendment to the pleading; "[i]t must be lateness coupled with significant prejudice to the other side" ( Edenwald Contr. Co. v. City of New York, 60 N.Y.2d at 959, 471 N.Y.S.2d 55, 459 N.E.2d 164 [internal quotation marks omitted]; see Coleman v. Worster, 140 A.D.3d 1002, 35 N.Y.S.3d 354 ). "In the absence of prejudice or surprise to the opposing party, leave to amend a pleading should be freely granted unless the proposed amendment is palpably insufficient or patently devoid of merit" ( Mannino v. Wells Fargo Home Mtge., Inc., 155 A.D.3d 860, 862, 65 N.Y.S.3d 66 ; see CPLR 3025[b] ; CDx Labs., Inc. v. Zila, Inc., 162 A.D.3d 972, 973, 80 N.Y.S.3d 382 ). "Prejudice is more than ‘the mere exposure of the [party] to greater liability’ " ( Kimso Apts., LLC v. Gandhi, 24 N.Y.3d at 411, 998 N.Y.S.2d 740, 23 N.E.3d 1008, quoting Loomis v. Civetta Corinno Constr. Corp., 54 N.Y.2d 18, 23, 444 N.Y.S.2d 571, 429 N.E.2d 90 ). "Rather, ‘there must be some indication that the [party] has been hindered in the preparation of [the party's] case or has been prevented from taking some measure in support of [its] position’ " ( Kimso Apts., LLC v. Gandhi, 24 N.Y.3d at 411, 998 N.Y.S.2d 740, 23 N.E.3d 1008, quoting Loomis v. Civetta Corinno Constr. Corp., 54 N.Y.2d at 23, 444 N.Y.S.2d 571, 429 N.E.2d 90 ). The burden of establishing prejudice is on the party opposing the amendment (see Kimso Apts., LLC v. Gandhi, 24 N.Y.3d at 411, 998 N.Y.S.2d 740, 23 N.E.3d 1008 ). Here, contrary to Nu–Tek's contention, the Supreme Court providently exercised its discretion in allowing the plaintiff to amend its complaint to correct the date of the accident. The defendants failed to show that they were prejudiced or surprised by the proposed amendments (see id. at 412, 998 N.Y.S.2d 740, 23 N.E.3d 1008 ; 39 Coll. Point Corp. v. Transpac Capital Corp., 27 A.D.3d 454, 455, 810 N.Y.S.2d 520 ), and did not establish that the proposed amendment were patently devoid of merit or palpably insufficient (see Strunk v. Paterson, 145 A.D.3d 700, 701, 44 N.Y.S.3d 64 ; Longo v. Long Is. R.R., 116 A.D.3d 676, 677, 983 N.Y.S.2d 579 ).
RIVERA, J.P., DILLON, MILLER and BARROS, JJ., concur.