Ferreira v. Unico Service Corp.

• Decision Date: 21 June 1999
• Citation: 262 AD2d 524,692 N.Y.S.2d 445
• Parties: Florindo FERREIRA, appellant, v. UNICO SERVICE CORPORATION, et al., defendants third-party plaintiffs-respondents, Mustapha Kayselchuk, et al., defendants; et al., third-party defendant.
• Court: New York Supreme Court — Appellate Division

Page 445

692 N.Y.S.2d 445

Florindo FERREIRA, appellant, v. UNICO SERVICE CORPORATION, et al., defendants third-party plaintiffs-respondents Mustapha Kayselchuk, et al., defendants; et al., third-party defendant.

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

June 21, 1999.

Rosenberg & Gluck, LLP, Port Jefferson, N.Y. (Michael V. Buffa of counsel), for appellant.

Fiedelman & McGaw, Jericho, N.Y. (James K. O'Sullivan of counsel), for defendants third-party plaintiffs-respondents.

McCarthy & McCarthy, Melville, N.Y. (Kevin A. McCarthy of counsel), for defendant Mustapha Kayselchuk.

GUY JAMES MANGANO, P.J., THOMAS R. SULLIVAN, GLORIA GOLDSTEIN and LEO F. McGINITY, JJ.

MEMORANDUM BY THE COURT.

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Suffolk County (Floyd, J.), dated June 30, 1998, which denied his motion for leave to amend the bill of particulars.

ORDERED that the order is modified by deleting the provision thereof denying that branch of the plaintiff's motion which was for leave to amend the bill of particulars to include alleged violations of the Industrial Code (12 NYCRR 23-1.7 and 12 NYCRR 23-1.15) in support of his cause of action predicated on Labor Law § 241(6) and substituting therefor a provision granting that branch of the motion; as so modified, the order is affirmed, with costs to the plaintiff.

The plaintiff, a foreman employed by the third-party defendant Debut Concrete Construction Corporation, was laying cement over gasoline tanks which had been installed underground at a gas station work site. While the plaintiff was "brooming" the cement, he fell approximately four feet into a hole in one of the tanks which was left uncovered.

It was an improvident exercise of discretion to deny that branch of the plaintiff's motion which was for leave to amend the bill of particulars to include alleged violations of the Industrial Code (12 NYCRR 23-1.7 and 12 NYCRR 23-1.15) in support of his cause of action predicated on Labor Law § 241(6) (see, Gusmerotti v. Martocci, 169 A.D.2d 813, 565 N.Y.S.2d 181; cf., Ross v. Curtis-Palmer Hydro-Elec. Co., 81 N.Y.2d 494, 601 N.Y.S.2d 49, 618 N.E.2d 82). When no prejudice or unfair surprise exists, leave to amend pleadings, or to supplement a bill of particulars, should be liberally granted (see, 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 defendants will sustain no...