Garafola v. Wing Inc.

139 A.D.3d 793

33 N.Y.S.3d 287

2016 N.Y. Slip Op. 03703

Christopher R. GARAFOLA, appellant,

v.WING INC. Specialty Trades, defendant,Skanska USA Building, Inc., et al., respondents.

2015-02683, Index No. 9426/12.

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

May 11, 2016.

William Schwitzer & Associates, P.C., New York, N.Y. (Noah Katz of counsel), for appellant.

Fabiani Cohen & Hall, LLP, New York, N.Y. (Kevin B. Pollak and Nicole Galletta of counsel), for respondents.

WILLIAM F. MASTRO, J.P., CHERYL E. CHAMBERS, SHERI S. ROMAN, and JOSEPH J. MALTESE, JJ.

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Vaughan, J.), dated December 18, 2014, which denied his motion for leave to amend the caption of the action to add his wife as an additional plaintiff, to amend the complaint to assert an additional cause of action on behalf of his wife to recover for the loss of his services, and to deem the supplemental summons and amended complaint served on the defendants.

ORDERED that the order is reversed, on the facts and in the exercise of discretion, without costs or disbursements, and the plaintiff's motion for leave to amend the caption of the action to add his wife as an additional plaintiff, to amend the complaint to assert an additional cause of action on behalf of his wife to recover for the loss of his services, and to deem the supplemental summons and amended complaint served on the defendants is granted.

The plaintiff commenced this action in 2012 to recover damages for injuries he suffered in an alleged construction accident. Approximately two years later, he moved for leave to amend the complaint to assert a derivative claim on behalf of his wife, to whom he has been married since 2001, to recover damages for the loss of his services, and to deem the supplemental summons and amended complaint served on the defendants. The Supreme Court, citing the plaintiff's unexplained delay in seeking the amendment, denied the motion.

Leave to amend the pleadings “shall be freely given,” provided the amendment is not palpably insufficient, does not prejudice or surprise the opposing party, and is not patently devoid of merit (McCaskey, Davies & Assoc. v. New York City Health & Hosps. Corp., 59 N.Y.2d 755, 757, 463 N.Y.S.2d 434, 450 N.E.2d 240, quoting CPLR 3025[b] ; see Katz v. Castlepoint Ins. Co., 121 A.D.3d 948, 950, 995 N.Y.S.2d 131 ; Ryan v. Town of Riverhead, 117 A.D.3d 707, 710, 985 N.Y.S.2d 584 ). On a motion for leave to amend, “[t]he burden of establishing prejudice is on the party opposing the amendment” (Kimso Apts., LLC v. Gandhi, 24 N.Y.3d 403, 411, 998 N.Y.S.2d 740, 23 N.E.3d 1008 ). In this regard, the asserted prejudice must be more than “the mere exposure of the [opponent] to greater liability” (Loomis v. Civetta Corinno Constr. Corp., 54 N.Y.2d 18, 23, 444 N.Y.S.2d 571, 429 N.E.2d 90 ) and must indicate that the opponent “has...