Galarraga v. City of New York

• Decision Date: 05 August 2008
• Docket Number: No. 2007-00474.,No. 2006-11464.,2006-11464.,2007-00474.
• Citation: 2008 NY Slip Op 6545,54 A.D.3d 308,863 N.Y.S.2d 47
• Parties: MANUEL GALARRAGA, Also Known as MIGUEL GALARRAGA, Respondent, et al., Plaintiff, v. CITY OF NEW YORK, Appellant, et al., Defendants.
• Court: New York Supreme Court — Appellate Division

54 A.D.3d 308

863 N.Y.S.2d 47

2008 NY Slip Op 6545

MANUEL GALARRAGA, Also Known as MIGUEL GALARRAGA, Respondent, et al., Plaintiff, v. CITY OF NEW YORK, Appellant, et al., Defendants.

No. 2006-11464.

No. 2007-00474.

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

August 5, 2008.

The plaintiff was injured during the course of his employment removing asbestos from a New York City school when he struck his head on an overhanging pipe as he was attempting to leave his basement work area after the lighting and ventilation failed. He commenced this action against, among others, the City of New York, which owned the building in which he was working, to recover damages, inter alia, in effect, for violation of Labor Law § 241 (6). At trial, the plaintiff asserted that the City violated 12 NYCRR 23-1.8 (c) (1), which provides that every person required to work or pass within any area "where the hazard of head bumping exists shall be provided with and shall be required to wear an approved safety hat." Here, the plaintiff argued, although the overhanging pipes in his basement work area constituted such a hazard, he was not provided with a safety hat. The jury found, among other things, that the City had violated Labor Law § 241 (6) and was 55% at fault in the happening of the accident, and awarded the plaintiff damages. The damages were subsequently reduced by stipulation of the plaintiff. On appeal, the City argues, inter alia, that the Supreme Court erred by, in effect, permitting the plaintiff to amplify his pleadings at trial concerning his Labor Law § 241 (6) cause of action to identify the specific provision of the Industrial Code (hereinafter the Code) allegedly violated, and that the damages awarded, even as reduced by the stipulation of the plaintiff, are excessive. We disagree.

Labor Law § 241 (6) imposes a nondelegable duty on owners and contractors to provide reasonable and adequate protection and safety for workers, and to comply with the specific safety rules and regulations promulgated by the Commissioner of the Department of Labor as set forth in the Code (see Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 502 [1993]; Norton v Park Plaza Owners Corp., 263 AD2d 531 [1999]). To establish a cause of action for a violation of Labor Law § 241 (6), a plaintiff must plead and prove a violation of a specific provision of the Code (see Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 505 [1993]). Here, during the pretrial proceedings, the plaintiff did not identify the specific Code provision allegedly violated. However, concomitantly, the City never made a demand for the same. Indeed, although such a demand was made by a former party, there is no evidence that the City joined in that demand. Further, although the plaintiff deferred a response to the demand until after the completion of disclosure, no response was provided. No further mention was made of the demand. Consequently, it was not until trial that the plaintiff identified 12 NYCRR 23-1.8 (c) (1) as the relevant Code provision. The City argues that this delay was fatal. However, on the facts and circumstances presented, we disagree.

In general, leave to amend a pleading may be granted at any time, including during trial, absent prejudice or surprise to the opposing party, unless the proposed amendment is palpably insufficient or patently devoid of merit (see McCaskey, Davies & Assoc. v New York City Health & Hosps. Corp., 59 NY2d 755 [1983]; Morris v Queens Long Is. Med. Group, P.C., 49 AD3d 827 [2008]; Lanpont v Savvas Cab Corp., 244 AD2d 208 [1997]). However, where the application for leave to amend is made long after the action has been certified for trial, judicial discretion in allowing such amendments should be discrete, circumspect, prudent, and cautious, and, where leave is sought on the eve of trial, judicial discretion should be exercised sparingly (see Morris v Queens Long Is. Med. Group, P.C., 49 AD3d 827 [2008]). Relevant to the case at bar, this Court has held that the failure to identify the specific Code provision allegedly violated in support of a Labor Law § 241 (6) cause of action either in the complaint or in the bill or supplemental bills of particulars is not necessarily fatal. Rather, leave to amend the pleadings to so identify the relevant Code provision may properly be granted, even after the note of issue has been filed, where the plaintiff makes a showing of merit, and the amendment involves no new factual allegations, raises no new theories of liability, and causes no prejudice to the defendant (see Dowd v City of New York, 40 AD3d 908 [2007]; Latino v Nolan & Taylor-Howe Funeral Home, 300 AD2d 631 [2002]; Kelleir v Supreme Indus. Park, 293 AD2d 513 [2002]). Here, applying these standards, the Supreme Court did not err by, in effect, permitting the amendment of the plaintiff's pleadings to identify 12 NYCRR 23-1.8 (c) (1) as the relevant provision.

On appeal, as before the Supreme Court, the City's arguments suggest that the plaintiff's initial pleading failure in and of itself was fatal, or that, at a minimum, the amendment should have been denied due to laches. However, as discussed, supra, the initial pleading failure was not in and of itself fatal. Further, although a long period of time elapsed between the accident and the trial, the cause of the delay is not explained on the record. In any event, laches is not mere delay, but considerable delay resulting in a change of position, intervention of equities, loss of evidence, or other disadvantages (see O'Dette v Guzzardi, 204 AD2d 291 [1994]). Here, this was not demonstrated.

Similarly, on appeal, as before the Supreme Court, the City does not particularize its argument that it was prejudiced by the plaintiff's belated amplification of his pleadings. Rather, the City's arguments merely suggest that it was misled into believing that the plaintiff's factual allegations focused upon who was responsible for the loss of lighting in the...