Assante v. City of New York
| Decision Date | 06 May 1991 |
| Citation | 173 A.D.2d 430,570 N.Y.S.2d 55 |
| Parties | Salvatore ASSANTE, et al., Appellants, v. The CITY OF NEW YORK, et al., Respondents. |
| Court | New York Supreme Court — Appellate Division |
Morris J. Eisen, P.C. (B. Jennifer Jaffee, New York City, of counsel), for appellants.
Victor A. Kovner, Corp. Counsel, New York City (Ellen B. Fishman and Linda H. Young, of counsel), for respondents.
Before THOMPSON, J.P., and BRACKEN, BROWN and EIBER, JJ.
MEMORANDUM BY THE COURT.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal from a judgment of the Supreme Court, Kings County (Vinik, J.), dated June 5, 1989, which, upon a jury verdict, dismissed the complaint.
ORDERED that the judgment is affirmed, with costs.
In April of 1982 the plaintiff Salvatore Assante, a New York City Department of Sanitation worker, sustained injuries when the vehicle he was operating to remove accumulated snow hit an obstruction and came to an abrupt stop, propelling him forward. The only theories of liability contained in the notice of claim and complaint were that Assante was injured because the vehicle "failed to properly stop, not having proper and adequate safety devices", and the failure of the defendant City of New York to maintain a safe road. In the bill of particulars, the plaintiffs alleged that the Department of Sanitation failed to provide "proper and adequate equipment". No other theories of liability were contained in any of the pleadings. In the midst of the trial in 1988, the plaintiffs attempted to introduce a new theory of liability--that the injuries were caused by a second collision sustained by Assante due to the absence of a seat belt in the vehicle, as set forth inMcMahon v. Butler, 73 A.D.2d 197, 426 N.Y.S.2d 326, and they moved, after the parties rested, to conform the pleadings to the proof. The trial court denied the motion, noting the plaintiffs' prejudicial delay in asserting this theory as a factor in its determination.
The plaintiffs contend on appeal that the Supreme Court abused its discretion in denying their motion to amend the pleadings to conform to the evidence. Although CPLR 3025(c) permits a court to grant such a motion upon terms as may be just, a trial court has great discretion in this matter (see e.g., Edenwald Contr. Co. v. City of New York, 60 N.Y.2d 957, 959, 471 N.Y.S.2d 55, 459 N.E.2d 164). The plaintiffs' attempt to assert a new theory of liability, based as it was upon new factual...
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...to proceed under a theory of liability that the City failed to provide "proper and adequate equipment", Assante v. City of New York, 173 A.D.2d 430, 570 N.Y.S.2d 55 (2d Dept., 1991). The court did not dispute the jury's province to consider whether the City was negligent in failing to provi......
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