Naranjo v. Star Corrugated Box Co.

Oct 4, 2004
Versions:11 A.D.3d 438
782 N.Y.S.2d 382
2004 N.Y. App. Div. LEXIS 11570

In an action to recover damages for personal injuries, the fourth-party defendant, second third-party defendant, United Specialized Services Corp., appeals from an order of the Supreme Court, Queens County (LeVine, J.), dated June 24, 2003, which, among other things, denied its motion, inter alia, to dismiss the complaint pursuant to CPLR 3126 based on the plaintiffs failure to comply with discovery demands, and the third-party defendant, fourth-party plaintiff, Fort Cica Roofing & General Contracting, Inc., separately appeals, as limited by *439its brief, from so much of the same order as granted the plaintiffs motion for leave to amend the complaint to assert direct causes of action against it.

Ordered that the order is affirmed, with one bill of costs to the plaintiff.

The Supreme Court properly exercised its discretion in allowing the plaintiff to amend the complaint to assert direct causes of action against Fort Cica Roofing & General Contracting, Inc. (hereinafter Fort Cica). The proposed Labor Law § 240 (1) and § 241 (6) claims against Fort Cica (the general contractor) have merit, the plaintiff provided a reasonable excuse for his delay in seeking leave to amend, and Fort Cica failed to demonstrate that it will suffer any prejudice as a result of the amendment (see CPLR 3025 [b]; Edenwald Contr. Co. v City of New York, 60 NY2d 957, 959 [1983]; St. Paul Fire & Mar. Ins. Co. v Town of Hempstead, 291 AD2d 488 [2002]).

The court also properly exercised its discretion in permitting the plaintiffs amended complaint against Fort Cica to relate back to the third-party complaint (see Khalil v Guardino, 288 AD2d 349 [2001]; Duffy v Horton Mem. Hosp., 66 NY2d 473 [1985]; see generally Buran v Coupal, 87 NY2d 173 [1995]).

The remaining contention of United Specialized Services Corp. is without merit. Smith, J.P., H. Miller, S. Miller and Luciano, JJ., concur.