Carlino v. Shapiro

180 A.D.3d 989

119 N.Y.S.3d 234

Robert CARLINO, et al., Appellants,

v.Joan SHAPIRO, et al., Defendants,1515 Bedford Avenue Realty, LLC, Respondent.

2017–04371

2017–13054

Index No. 514322/15

Supreme Court, Appellate Division, Second Department, New York.

Submitted - November 26, 2019

February 26, 2020

Law Office of Peter A. Hurwitz, PLLC, New City, NY, for appellants.

Cerussi & Spring, P.C., White Plains, N.Y. (Kevin P. Westerman and Mary Rich of counsel), for respondent.

CHERYL E. CHAMBERS, J.P., LEONARD B. AUSTIN, ROBERT J. MILLER, LINDA CHRISTOPHER, JJ.

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiffs appeal from (1) an order of the Supreme Court, Kings County (Genine D. Edwards, J.), dated March 24, 2017, and (2) an order of the same court dated October 20, 2017. The order dated March 24, 2017, granted the motion of the defendant 1515 Bedford Avenue Realty, LLC, pursuant to CPLR 3211(a)(7) to dismiss the amended complaint insofar as asserted against it. The order dated October 20, 2017, insofar as appealed from, upon reargument, adhered to the original determination in the order dated March 24, 2017, and denied that branch of the plaintiffs' motion which was for leave to amend the amended complaint.

ORDERED that the appeal from the order dated March 24, 2017, is dismissed, as that order was superseded by the order dated October 20, 2017, made upon reargument; and it is further,

ORDERED that the order dated October 20, 2017, is affirmed insofar as appealed from; and it is further,

ORDERED that one bill of costs is awarded to the defendant 1515 Bedford Avenue Realty, LLC.

The plaintiffs commenced this action seeking damages for injuries allegedly sustained by the injured plaintiff when a vehicle he was operating was struck by a dump truck exiting a construction site at 1515 Bedford Avenue in Brooklyn. The plaintiffs thereafter filed an amended complaint asserting causes of action alleging negligence against the owner of the construction site, the defendant 1515 Bedford Avenue Realty, LLC (hereinafter Bedford Avenue), and others. Bedford Avenue then moved pursuant to CPLR 3211(a)(7) to dismiss the amended complaint insofar as asserted against it for failure to state a cause of action, and the Supreme Court, in an order dated March 24, 2017, granted the motion. Thereafter, the plaintiffs moved for leave to reargue their opposition to Bedford Avenue's motion and for leave to amend the amended complaint to assert a cause of action alleging public nuisance against Bedford Avenue. In an order dated October 20, 2017, the court granted reargument, and, upon reargument, adhered to its original determination and denied that branch of the plaintiffs' motion which was for leave to amend the amended complaint.

"Permission to amend a pleading should be ‘freely given’ where the proposed amendment is neither palpably insufficient nor patently devoid of merit, and there is no evidence that the amendment would prejudice or surprise the opposing party" ( Krakovski v. Stavros Assoc., LLC, 173 A.D.3d 1146, 1147, 103 N.Y.S.3d 553, quoting CPLR 3025[b] [citations omitted]; see Davis v. South Nassau Communities Hosp., 26 N.Y.3d 563, 580, 46 N.E.3d 614 ; 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 ). "A motion to amend a complaint or other pleading to add a cause of action or theory of recovery that is time-barred under the applicable statute of limitations is ‘patently devoid of merit’ " ( Schwartz v. Walter, 171 A.D.3d 969, 970, 95 N.Y.S.3d 879, quoting Wander v. St. John's Univ., 163 A.D.3d 896, 897, 82 N.Y.S.3d 47 ; see Roco G.C. Corp. v. Bridge View Tower, LLC, 166 A.D.3d 1031, 1033, 89 N.Y.S.3d 201 ). However, under the relation-back doctrine, a plaintiff may "interpose a claim or cause of action which would otherwise be time-barred, where the allegations of the original complaint gave notice of the transactions or occurrences to be proven and the cause of action would have been timely interposed if asserted in the original complaint" ( Moezinia v. Ashkenazi, 136 A.D.3d 990, 992, 25 N.Y.S.3d 632 ; see CPLR 203[f] ; Caffaro v. Trayna, 35 N.Y.2d 245, 250, 360 N.Y.S.2d 847, 319 N.E.2d 174 ; Cady v. Springbrook NY, Inc., 145 A.D.3d 846, 846, 44 N.Y.S.3d 107 ; Pendleton v. City of New York, 44 A.D.3d 733, 736, 843 N.Y.S.2d 648 ). "A new legal theory of recovery may be asserted, so long as it arises from the same transactions alleged in the original complaint," but the doctrine is unavailable "where the original allegations did not provide the defendants notice of the need to defend against the allegations of the amended complaint" ( Pendleton v. City of New York, 44 A.D.3d at 736, 843 N.Y.S.2d 648 ; see Cady v. Springbrook NY, Inc., 145 A.D.3d at 847, 44 N.Y.S.3d 107 ).

Here, the allegations of the amended complaint failed to give notice of transactions or occurrences to be proven and the need to defend against the allegations...