Beekman v. Sylvan Lawrence, Inc.
| Citation | 490 N.Y.S.2d 216,111 A.D.2d 658 |
| Parties | Jeffrey BEEKMAN, Plaintiff-Appellant, v. SYLVAN LAWRENCE, INC., Defendant-Respondent. |
| Decision Date | 18 June 1985 |
| Court | New York Supreme Court Appellate Division |
D. Kogelman, New York City, for plaintiff-appellant.
R.M. D'Erasmo, New York City, for defendant-respondent.
Before SANDLER, J.P., and ROSS, BLOOM, MILONAS and ELLERIN, JJ.
Order of the Supreme Court, New York County, entered April 24, 1984, denying plaintiff's motion to amend his complaint to assert a cause of action under Labor Law, Section 240, modified, on the law, the facts and in the exercise of discretion, without costs, to deny the motion without prejudice to renewal upon proper papers showing a basis for such relief.
Plaintiff brought this action against the owner and/or managing agent of premises 420 East 37th Street, to recover for injuries suffered as the result of an accident occurring in the premises. Some four years after the accident and one year after the commencement of the action, he moved to add a cause of action alleging a violation of Section 240 of the Labor Law. Special Term denied the motion on the grounds that there was no affidavit of merits by a person having personal knowledge of the facts and that it was barred by the Statute of Limitations. We disagree with the reasons ascribed by Special Term for denial of the motion, although we agree that denial of the motion was proper. However, we would allow plaintiff the opportunity to renew upon proper papers.
Initially, we note that the original complaint may have sufficiently apprised defendant of the nature of the plaintiff's claim so that the proposed amended complaint falls within the ambit of CPLR 203, subd. e (see 1 Weinstein-Korn-Miller, paragraphs 203.29, 203.30).
However, the motion is supported solely by an attorney's affidavit. This is insufficient (Hospital v. Messier, 32 A.D.2d 596, 299 N.Y.S.2d 360). Additionally, the papers set forth no basis for concluding that Section 240 of the Labor Law was violated, or, indeed, is applicable. The sole allegation in that connection is that the action arose "out of events which took place on March 30, 1979, wherein plaintiff, while working upon a ladder at defendant's premises, was precipitated to the ground and suffered severe personal injuries". The proposed amended complaint supplements this by asserting that defendant employed plaintiff and failed to furnish or erect proper devices. If, in fact, the...
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...merit (see, CPLR 3025[b]; March v. St. Volodymyr Ukranian Catholic Church, 117 A.D.2d 864, 498 N.Y.S.2d 578; Beekman v. Sylvan Lawrence, Inc., 111 A.D.2d 658, 659, 490 N.Y.S.2d 216; Anos Diner v. Pitios Gourmet, 100 A.D.2d 948, 475 N.Y.S.2d 86; Brennan v. City of New York, 99 A.D.2d 445, 47......
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