Faiella v. Tysens Park Apartments, LLC

• Decision Date: 30 October 2013
• Citation: 110 A.D.3d 1028,2013 N.Y. Slip Op. 07008,975 N.Y.S.2d 71
• Parties: Madeline FAIELLA, respondent, v. TYSENS PARK APARTMENTS, LLC, et al., appellants.
• Court: New York Supreme Court — Appellate Division

110 A.D.3d 1028
975 N.Y.S.2d 71
2013 N.Y. Slip Op. 07008

Madeline FAIELLA, respondent,
v.
TYSENS PARK APARTMENTS, LLC, et al., appellants.

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

Oct. 30, 2013.

[975 N.Y.S.2d 72]

Gallo Vitucci Klar LLP, New York, N.Y. (Kimberly A. Ricciardi of counsel), for appellants.

Robert A. Flaster, P.C., New York, N.Y. (Jonathan A. Fier of counsel), for respondent.

MARK C. DILLON, J.P., THOMAS A. DICKERSON, L. PRISCILLA HALL, and LEONARD B. AUSTIN, JJ.

In an action to recover damages for personal injuries, the defendants appeal, as limited by their notices of appeal and brief, from so much of an order of the Supreme Court, Kings County (Bunyan, J.), dated July 25, 2012, as denied those branches of their respective motions which were pursuant to CPLR 3211(a)(5) and (7) to dismiss the complaint insofar as asserted against each of them, and granted that branch of the plaintiff's cross motion which was pursuant to CPLR 3025(b) for leave to amend the complaint.

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

On August 21, 2010, the plaintiff allegedly was injured in the parking lot of an apartment building owned and operated by the defendants Tysens Park Apartments, LLC, and Apartment Management Associates, LLC. According to the plaintiff, the defendant Lorraine Sweeper, a security officer employed by the defendant Park Avenue Security South, Inc., which provided security services at the subject location, abruptly moved a shopping cart the plaintiff was using to unload items, causing the plaintiff to become startled, lose her balance, and fall to the ground. In November 2011, the plaintiff commenced this action.

The Supreme Court properly denied those branches of the separate motions of the defendants Park Avenue Security South, Inc., and Lorraine Sweeper, and the defendants Tysens Park Apartments, LLC, and Apartment Management Associates, LLC, which were pursuant to CPLR 3211(a)(5) and (7) to dismiss the complaint insofar as asserted against each of them. “In classifying a cause of action for statute of limitations purposes, the controlling consideration is not the form in which the cause of action is stated, but its substance” ( Rutzinger v. Lewis, 302 A.D.2d 653, 654, 754 N.Y.S.2d 735; see Tong v. Target, Inc., 83 A.D.3d 1046, 922 N.Y.S.2d 458). Contrary to the defendants' contentions, the complaint, in substance, alleged a negligence cause of action; it did not allege the...