Johnson v. Ortiz Transp., LLC

205 A.D.3d 696

165 N.Y.S.3d 735 (Mem)

Gertrude C. JOHNSON, appellant,

v.ORTIZ TRANSPORTATION, LLC, et al., respondents (and a related action).

2018–14263

Index No. 66425/16

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

Submitted—February 22, 2022

May 4, 2022

Grant & Longworth, LLP, Dobbs Ferry, NY (Andrew C. Chan of counsel), for appellant.

Smith Mazure Director Wilkins Young & Yagerman, P.C., New York, NY (Joel M. Simon of counsel), for respondents.

MARK C. DILLON, J.P., COLLEEN D. DUFFY, FRANCESCA E. CONNOLLY, LINDA CHRISTOPHER, JJ.

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Westchester County (Gerald E. Loehr, J.), dated November 14, 2018. The order, insofar as appealed from, denied those branches of the plaintiff's motion which were pursuant to CPLR 3025(b) for leave to amend the complaint to add Edgar Ortiz, Maria Ortiz, and Josue Daniel Padilla as defendants.

ORDERED that the order is affirmed insofar as appealed from, with costs.

In November 2016, the plaintiff commenced this action against the defendants, Ortiz Transportation, LLC (hereinafter OT), and Omar H. Cespedes, to recover damages for personal injuries that she allegedly sustained in a 2015 motor vehicle accident. The complaint asserted causes of action alleging negligence and violations of the Federal Motor Carrier Safety Regulations (hereinafter FMCSR). The defendants interposed an answer dated April 7, 2017. Following the deposition of OT by its dispatcher Edgar Ortiz (hereinafter Edgar), the plaintiff moved pursuant to CPLR 3025(b) for leave to amend the complaint to add Edgar, Maria Ortiz (hereinafter Maria), Quick Transportation, LLC (hereinafter Quick), and Josue Daniel Padilla as defendants. By order dated November 14, 2018, the Supreme Court, inter alia, granted that branch of the plaintiff's motion which was for leave to amend the complaint to add Quick as a defendant, and denied those branches of the motion which were to add Edgar, Maria, and Padilla (hereinafter collectively the proposed individual defendants) as defendants because "no factual basis for their liability has been set forth." The plaintiff appeals from so much of the order as denied those branches of her motion which were for leave to amend the complaint to add the proposed individual defendants.

"A party may amend his or her pleading ... at any time by leave of court or by stipulation of all parties" ( CPLR 3025[b] ). Whether to grant leave to amend is within the trial court's discretion (see e.g. Mulle v. Lexington Ins. Co., 198 A.D.3d 908, 910–911, 157 N.Y.S.3d 29 ; Tavor v. Lane Towers Owners, Inc., 197 A.D.3d 584, 586, 153 N.Y.S.3d 52 ; Landsman v. Tolo, 194 A.D.3d 1034, 1035–1036, 149 N.Y.S.3d 212 ). However, leave to amend a pleading "shall be freely given" ( CPLR 3025[b] ; see U.S. Bank N.A. v. Primiano, 191 A.D.3d 926, 928, 142 N.Y.S.3d 565 ). " ‘No evidentiary showing of merit is required under CPLR 3025(b) ’ " ( Westchester County Corr. Officers Benevolent Assn., Inc. v. County of Westchester, 197 A.D.3d 684, 685, 153 N.Y.S.3d 124, quoting Lucido v. Mancuso, 49 A.D.3d 220, 229, 851 N.Y.S.2d 238 ; see Watkins–Bey v. MTA Bus Co., 174 A.D.3d 553, 554, 105 N.Y.S.3d 494 ). "Thus, leave should be given where the amendment is neither palpably insufficient nor patently devoid of merit, and the delay in seeking amendment does not prejudice or surprise the opposing party" ( US Bank N.A. v. Primiano, 191 A.D.3d at 928, 142 N.Y.S.3d 565 ; see Ditech Fin., LLC v. Khan, 189 A.D.3d 1360, 1361–1362, 139 N.Y.S.3d 293 ; Wells Fargo Bank, N.A. v. Spatafore, 183 A.D.3d 853, 853, 122 N.Y.S.3d 557 ).

Here, the Supreme Court properly found, in effect, that the proposed amended complaint was palpably insufficient or patently devoid of merit because it failed to allege facts sufficient to hold the proposed individual defendants personally liable under a piercing the corporate veil theory (see Allstate ATM Corp. v. E.S.A. Holding Corp., 98 A.D.3d 541, 542, 949 N.Y.S.2d 483 ). " ‘Generally, a plaintiff seeking to pierce the corporate veil must show that (1) the owners exercised complete domination of the corporation in respect to the transaction attacked; and (2) that such domination was used to commit a fraud or wrong against the plaintiff which resulted in plaintiff's injury’ " ( Cortlandt St. Recovery Corp. v. Bonderman, 31 N.Y.3d 30, 47, 73 N.Y.S.3d 95, 96 N.E.3d 191, quoting Conason v. Megan Holding, LLC, 25 N.Y.3d 1, 18, 6 N.Y.S.3d 206, 29 N.E.3d 215 ; see Americore Drilling & Cutting, Inc. v. EMB Contr. Corp., 198 A.D.3d 941, 946, 156 N.Y.S.3d 355 ). "However, ‘[e]vidence of domination alone does not suffice without an additional showing that it led to inequity,...