Lanpont v. Savvas Cab Corp., Inc.

CourtNew York Supreme Court Appellate Division
Writing for the CourtBefore MURPHY
Parties, 1997 N.Y. Slip Op. 9567 Juan LANPONT, Plaintiff-Respondent, v. SAVVAS CAB CORP., INC., et al., Defendants-Appellants.
Decision Date18 November 1997

Page 285

664 N.Y.S.2d 285
244 A.D.2d 208, 1997 N.Y. Slip Op. 9567
Juan LANPONT, Plaintiff-Respondent,
v.
SAVVAS CAB CORP., INC., et al., Defendants-Appellants.
Supreme Court, Appellate Division,
First Department.
Nov. 18, 1997.

Page 286

Donald Drew Goldberg, for Plaintiff-Respondent.

Marjorie E. Bornes, for Defendants-Appellants.

Before MURPHY, J.P., and MILONAS, WALLACH, RUBIN and MAZZARELLI, JJ.

MEMORANDUM DECISION.

Judgment, Supreme Court, Bronx County (Frank Diaz, J.), rendered November 13, 1996, which, after a jury trial, awarded plaintiff $698,251, and bringing up for review an order of the Supreme Court, Bronx County (Howard Silver, J.), entered June 8, 1996, which denied defendants' application seeking leave to amend their answer to assert the affirmative defense of the exclusivity of Worker's Compensation and for dismissal of the complaint, unanimously reversed, on the law, without costs, the judgment vacated, defendants' motion to amend their answer to include the Workers' Compensation defense is granted, and the matter is remanded to the Supreme Court for a determination as to the Worker's Compensation defense only, and otherwise affirmed.

On July 5, 1992, plaintiff Juan Lanpont was injured while working as an auto mechanic at a garage located at 618 West 49th Street in Manhattan. Plaintiff had been working under the hood of a taxi owned by defendant Savvas Cab Corp. ("Savvas") for 10 or 15 minutes, with the taxi's motor running, when the car suddenly lurched forward pinning plaintiff against the garage wall. Defendant Sepyashvily ("Sepyashvily"), president of Savvas, told the police at the scene that he had accidentally put the car in drive instead of neutral, causing it to hit plaintiff. Plaintiff testified at trial that at the time of the accident he was employed by A & R Collision, but he also admitted that Sepyashvily was his supervisor, and was the person who gave him his work assignments. Notwithstanding plaintiff's acknowledgement that he was employed as a mechanic at the garage, he identified himself as a "pedestrian at the location" in his complaint and bill of particulars.

On or about August 24, 1992, plaintiff commenced this action against Sepyashvily as driver of the vehicle, and against Savvas as the owner of the vehicle. The defendants did not include Workers' Compensation among the affirmative defenses asserted in their verified answer. A jury was selected, and on June 21, 1996, the date the trial was scheduled to commence, defendants presented an order to show cause to the IAS judge seeking permission to amend their answer to include Workers' Compensation as a complete defense, and for dismissal of the action on that basis. The IAS judge summarily denied the motion. Defendants orally renewed their motion to amend the answer before the Trial Justice, to whom the case had been transferred, but the Trial Justice declined to hear the motion, citing the law of the case doctrine. Defendants challenge the denial of these motions.

"It is axiomatic that leave to amend pleadings should be freely given (CPLR 3025[b] ), that the determination of whether to allow or disallow the amendment is committed to the court's discretion (Murray v. City of New York, 43 N.Y.2d 400, 404-405 [401 N.Y.S.2d 773, 372 N.E.2d 560]), and that in the absence of surprise or prejudice, it is an abuse of discretion, as a matter of law, for the trial court to deny leave to amend an answer during or even after trial (McCaskey,

Page 287

Davies & Assocs. v. New York City Health & Hosps. Corp., 59 N.Y.2d 755, 757 [463 N.Y.S.2d 434, 450 N.E.2d 240]; see also, supra at 405 [401 N.Y.S.2d 773, 372 N.E.2d 560])." (Pensee Assocs., Ltd. v. Quon Shih-Shong, 199 A.D.2d 73, 74, 605 N.Y.S.2d 35). "In determining whether to grant a motion to amend an answer, the court should consider the merit of the proposed defense and whether the plaintiff will be prejudiced by the delay in raising it" (citations omitted) (Norwood v. City of New York, 203 A.D.2d 147, 148, 610 N.Y.S.2d 249, appeal dismissed84 N.Y.2d 849, 617 N.Y.S.2d 139, 641 N.E.2d 160).

Generally, when an employee is injured during the course of his employment, his sole remedy against his employer...

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38 practice notes
  • FTBK Investor II LLC v. Genesis Holding LLC, 810163/2011
    • United States
    • United States State Supreme Court (New York)
    • August 19, 2014
    ...Tishman Constr. Corp. of N.Y. v. City of New York, 280 A.D.2d 374, 377, 720 N.Y.S.2d 487 (1st Dep't 2001) ; Lanpont v. Savvas Cab Corp., 244 A.D.2d 208, 209–10, 664 N.Y.S.2d 285 (1st Dep't 1997) ; Norwood v. City of New York, 203 A.D.2d 147, 148, 610 N.Y.S.2d 249 (1st Dep't 1994). See Sterl......
  • Harris v. Vernier, Docket No. 208750.
    • United States
    • Court of Appeal of Michigan (US)
    • October 18, 2000
    ...(1986); Turner Constr. Co. v. Hebner, 276 Pa.Super. 341, 345-348, 419 A.2d 488 (1980). Moreover, in Lanpont v. Savvas Cab Corp., Inc., 244 A.D.2d 208, 211, 664 N.Y.S.2d 285 (1997), quoting Murray v. New York, 43 N.Y.2d 400, 407, 401 N.Y.S.2d 773, 372 N.E.2d 560 (1977), the court held that a......
  • Glynos v. Dorizas, Index No. 113984/2011
    • United States
    • United States State Supreme Court (New York)
    • March 6, 2015
    ...(1st Dep't 2006); Tishman Constr. Corp. of N.Y. v. City of New York, 280 A.D.2d 374, 377 (1st Dep't 2001); Lanpont v. Savvas Cab Corp., 244 A.D.2d 208, 209-10 (1st Dep't 1997); Norwood v. City of New York, 203 A.D.2d 147, 148 (1st Dep't 1994). See Sterling Natl. Bank v. American Elite Props......
  • Perini Corp. v. City of N.Y. (Honeywell St. and Queens Blvd. Bridges)
    • United States
    • United States State Supreme Court (New York)
    • March 16, 2010
    ...( Murray v. City of New York, 43 N.Y.2d 400, 404-405, 401 N.Y.S.2d 773, 372 N.E.2d 560 [1977]; Lanpont v. Savvas Cab Corp., Inc., 244 A.D.2d 208, 209, 664 N.Y.S.2d 285 [1st Dept. 1997] ). The factors the court must consider in exercising its discretion are whether the proposed amendment wou......
  • Request a trial to view additional results
38 cases
  • FTBK Investor II LLC v. Genesis Holding LLC, 810163/2011
    • United States
    • United States State Supreme Court (New York)
    • August 19, 2014
    ...Tishman Constr. Corp. of N.Y. v. City of New York, 280 A.D.2d 374, 377, 720 N.Y.S.2d 487 (1st Dep't 2001) ; Lanpont v. Savvas Cab Corp., 244 A.D.2d 208, 209–10, 664 N.Y.S.2d 285 (1st Dep't 1997) ; Norwood v. City of New York, 203 A.D.2d 147, 148, 610 N.Y.S.2d 249 (1st Dep't 1994). See Sterl......
  • Harris v. Vernier, Docket No. 208750.
    • United States
    • Court of Appeal of Michigan (US)
    • October 18, 2000
    ...(1986); Turner Constr. Co. v. Hebner, 276 Pa.Super. 341, 345-348, 419 A.2d 488 (1980). Moreover, in Lanpont v. Savvas Cab Corp., Inc., 244 A.D.2d 208, 211, 664 N.Y.S.2d 285 (1997), quoting Murray v. New York, 43 N.Y.2d 400, 407, 401 N.Y.S.2d 773, 372 N.E.2d 560 (1977), the court held that a......
  • Glynos v. Dorizas, Index No. 113984/2011
    • United States
    • United States State Supreme Court (New York)
    • March 6, 2015
    ...(1st Dep't 2006); Tishman Constr. Corp. of N.Y. v. City of New York, 280 A.D.2d 374, 377 (1st Dep't 2001); Lanpont v. Savvas Cab Corp., 244 A.D.2d 208, 209-10 (1st Dep't 1997); Norwood v. City of New York, 203 A.D.2d 147, 148 (1st Dep't 1994). See Sterling Natl. Bank v. American Elite Props......
  • Perini Corp. v. City of N.Y. (Honeywell St. and Queens Blvd. Bridges)
    • United States
    • United States State Supreme Court (New York)
    • March 16, 2010
    ...( Murray v. City of New York, 43 N.Y.2d 400, 404-405, 401 N.Y.S.2d 773, 372 N.E.2d 560 [1977]; Lanpont v. Savvas Cab Corp., Inc., 244 A.D.2d 208, 209, 664 N.Y.S.2d 285 [1st Dept. 1997] ). The factors the court must consider in exercising its discretion are whether the proposed amendment wou......
  • Request a trial to view additional results

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