Lalima v. Consol. Edison Co. of N.Y., Inc.

• Decision Date: 14 June 2017
• Citation: Lalima v. Consol. Edison Co. of N.Y., Inc., 151 A.D.3d 832, 58 N.Y.S.3d 66 (N.Y. App. Div. 2017)
• Parties: Vienna LALIMA, as administratrix of the estate of Douglas LaLima, deceased, and Vienna LaLima, individually, appellant, v. CONSOLIDATED EDISON COMPANY OF NEW YORK, INC., et al., defendants, Lewis Tree Service, defendant third-party plaintiff; Verizon New York, Inc., respondent.
• Court: New York Supreme Court — Appellate Division

151 A.D.3d 832

58 N.Y.S.3d 66

Vienna LALIMA, as administratrix of the estate of Douglas LaLima, deceased, and Vienna LaLima, individually, appellant,

v.CONSOLIDATED EDISON COMPANY OF NEW YORK, INC., et al., defendants,Lewis Tree Service, defendant third-party plaintiff;

Verizon New York, Inc., respondent.

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

June 14, 2017.

Richard M. Kenny (Judah Z. Cohen, Woodmere, NY, of counsel), for appellant.

Cullen and Dykman LLP, New York, NY (Kevin M. Walsh and Thomas J. Abernethy of counsel), for respondent.

REINALDO E. RIVERA, J.P., JOHN M. LEVENTHAL, LEONARD B. AUSTIN, and JEFFREY A. COHEN, JJ.

In an action to recover damages for personal injuries, the plaintiff appeals, as limited by her brief, from so much of an order of the Supreme Court, Kings County (Jimenez–Salta, J.), dated June 1, 2015, as denied those branches of her motion which were for leave to amend the complaint to add the third-party defendant, Verizon New York, Inc., as a direct defendant in the action and to assert causes of action against it for negligence, Labor Law violations, intentional spoliation of evidence, impairment of the right to sue, fraudulent concealment, civil contempt, and wrongful death.

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

The plaintiff's husband, an employee of the third-party defendant, Verizon New York, Inc. (hereinafter Verizon), was killed when, while working from the bucket of an aerial lift truck, he made contact with a high voltage power line owned by the defendant Consolidated Edison Company of New York, Inc. Shortly after the accident, the plaintiff's attorney advised Verizon of her intent to pursue litigation. In the context of a pre-action proceeding in aid of discovery, the parties entered into a stipulation in which Verizon agreed, inter alia, to secure and preserve the truck.

Thereafter, the plaintiff, as administratrix of her husband's estate, and individually, commenced this action against Consolidated Edison Company of New York, Inc., Lewis Tree Service, and the City of New York. Lewis Tree Service commenced a third-party action against Verizon. After Verizon notified the plaintiff that the truck had been vandalized while stored on its lot, the plaintiff retained an expert for the purpose of inspecting the truck. The expert reported that, amongst some other minor damage to the truck, a dead-man's switch which controlled the operation of the aerial lift bucket had been removed. The plaintiff then moved, inter alia, for leave to amend the complaint to add Verizon as a direct defendant in the action, and to assert causes of action against it for negligence, Labor Law violations, intentional spoliation of evidence, impairment of the right to sue, fraudulent concealment, civil contempt, and wrongful death, arguing that, even though Verizon was the decedent's employer, Verizon's spoliation in failing to properly preserve the truck in the same condition as it was at the time of the accident was so prejudicial that she should be permitted to pursue these claims against Verizon directly. The Supreme Court denied those branches of her motion.

"In the absence of prejudice or surprise to the opposing party, leave to amend a pleading should be...