Mohammed v. N.Y.S. Prof'l Fire Fighters Ass'n, Inc.

209 A.D.3d 1151

176 N.Y.S.3d 364

Hind MOHAMMED, Appellant,

v. NEW YORK STATE PROFESSIONAL FIRE FIGHTERS ASSOCIATION, INC., Defendant,andCity of Albany, Respondent.

534082

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

Calendar Date: September 12, 2022

Decided and Entered: October 20, 2022

Phelan, Phelan & Danek, LLP, Albany (Timothy S. Brennan of counsel), for appellant.

Marisa Franchini, Corporation Counsel, Albany (Robert Magee of counsel), for respondent.

Before: Egan Jr., J.P., Pritzker, Reynolds Fitzgerald, Ceresia and Fisher, JJ.

MEMORANDUM AND ORDER

Reynolds Fitzgerald, J. Appeal from an order of the Supreme Court (Peter A. Lynch, J.), entered September 2, 2021 in Albany County, which granted a motion by defendant City of Albany to dismiss the complaint against it and denied plaintiff's cross motion to amend the complaint.

In February 2020, plaintiff slipped and fell on snow and/or ice on a sidewalk in the City of Albany. In May 2021, plaintiff commenced this personal injury negligence action alleging that defendant City of Albany, among others, negligently designed, constructed and maintained the sidewalk, and failed to remove snow/ice and/or allowed a dangerous ice condition to form. The City then moved pre-answer to dismiss the complaint, pursuant to CPLR 3211(a)(7), on the grounds that plaintiff failed to plead compliance with the prior written notice of defect provision of the Albany City Code (see Albany City Code § 24–1). Plaintiff opposed the motion and cross-moved for leave to serve an amended complaint to cure the pleading omission. In so moving, plaintiff submitted documentation allegedly demonstrating that the City had received prior written notice of the condition complained of occurring at properties near the site of plaintiff's fall,¹ but not the site itself. Supreme Court granted the motion to dismiss and denied the cross motion to amend the complaint. Plaintiff appeals.

Plaintiff contends that Supreme Court erred in denying her motion to amend the complaint to include an allegation that the City had prior written notice of the condition which she alleges caused her fall. "Pursuant to CPLR 3025(b), a party may amend its pleadings at any time by leave of the court, which shall be freely given upon such terms as may be just. When leave is sought to amend a pleading, the movant need not establish the merits of the proposed amendment and, in the absence of prejudice or surprise resulting directly from the delay in seeking leave, such applications are to be freely granted unless the proposed amendment is palpably insufficient or patently devoid of merit" ( Passeri v. Brody, 199 A.D.3d 1260, 1261, 158 N.Y.S.3d 361 [3d Dept. 2021] [internal quotation marks and citations omitted]; see NYAHSA Servs., Inc., Self–Ins. Trust v. People Care Inc., 156 A.D.3d 99, 102, 64 N.Y.S.3d 730 [3d Dept. 2017] ). "The decision to grant leave to amend a complaint is within the trial court's sound discretion and will not be disturbed absent a clear abuse of that discretion" ( Place v. Preferred Mut. Ins. Co., 190 A.D.3d 1208, 1212, 141 N.Y.S.3d 528 [3d Dept. 2021] [internal quotation marks and citations omitted]; accord Walden v. Varricchio, 195 A.D.3d 1111, 1112–1113, 149 N.Y.S.3d 351 [3d Dept. 2021] ).

We find that Supreme Court abused its discretion in denying plaintiff's cross motion to amend the complaint. As it is undisputed that plaintiff timely filed a notice of claim concerning her fall and the City and plaintiff thereafter participated in a 50–h hearing (see General Municipal Law § 50–h ), the City cannot allege prejudice or surprise. Moreover, as demonstrated by her proposed amended complaint, plaintiff is not changing her theory of causation, but merely curing her pleading omission. Although Supreme Court correctly determined that the proposed amended complaint cured the pleading omission, its attendant conclusion that "[plaintiff's] claim is belied by the documentary evidence" and subsequent dismissal of the action on that basis was error.

At this stage of the litigation, where discovery has not yet even commenced, plaintiff has no burden to submit any proof. As such, the documents that she did submit are of no moment, and do not provide a basis upon which to dismiss her action (see Passeri v. Brody, 199 A.D.3d at 1262–1263, 158 N.Y.S.3d 361 ; Van Wageningen v. City of Ithaca, 168 A.D.3d 1266, 1267, 90 N.Y.S.3d 715 [3d Dept. 2019] ; Massey v. City of Cohoes, 35 A.D.3d 996, 996, 826 N.Y.S.2d 779 [3d Dept. 2006] ). Finally, contrary to the City's assertion that the proposed amended complaint...