Palaguachi v. Idlewild 228th St., LLC

• Decision Date: 29 September 2021
• Docket Number: Index No. 706775/15,2019–00630
• Citation: Palaguachi v. Idlewild 228th St., LLC, 197 A.D.3d 1321, 153 N.Y.S.3d 585 (N.Y. App. Div. 2021)
• Parties: Jose PALAGUACHI, plaintiff-respondent, v. IDLEWILD 228TH STREET, LLC, appellant, Bar Construction Corp., defendant-respondent.
• Court: New York Supreme Court — Appellate Division

197 A.D.3d 1321

153 N.Y.S.3d 585

Jose PALAGUACHI, plaintiff-respondent,

v.IDLEWILD 228TH STREET, LLC, appellant,Bar Construction Corp., defendant-respondent.

2019–00630

Index No. 706775/15

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

Argued—May 27, 2021

September 29, 2021

Baxter Smith & Shapiro, P.C., Hicksville, N.Y. (Dennis S. Heffernan and Louis B. Dingeldey, Jr., of counsel), for appellant.

Silberstein Awad & Miklos, P.C., Garden City, N.Y. (Daniel P. Miklos and Michael Grazio of counsel), for plaintiff-respondent.

Baker Greenspan & Bernstein, Bellmore, N.Y. (Patrick J. Garvey and Robert L. Bernstein, Jr., of counsel), for defendant-respondent.

REINALDO E. RIVERA, J.P., LEONARD B. AUSTIN, COLLEEN D. DUFFY, BETSY BARROS, JJ.

DECISION & ORDER

In an action to recover damages for personal injuries, the defendant Idlewild 228th Street, LLC, appeals from an order of the Supreme Court, Queens County (Leonard Livote, J.), entered January 2, 2019. The order, insofar as appealed from, denied those branches of the motion of the defendant Idlewild 228th Street, LLC, which were for summary judgment dismissing the cause of action alleging a violation of Labor Law § 241(6) insofar as asserted against it and on its cross claim for contractual indemnification against the defendant Bar Construction Corp., and granted that branch of the plaintiff's cross motion which was for leave to amend the bill of particulars to allege violations of additional Industrial Code sections.

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

In June 2015, the plaintiff commenced this action against the defendant Idlewild 228th Street, LLC (hereinafter Idlewild), the owner of a building under construction in Queens (hereinafter the premises), and the defendant Bar Construction Corp. (hereinafter Bar Construction), the general contractor of the construction project, to recover damages for personal injuries the plaintiff alleged that he sustained in October 2014 when he was working at the premises as an employee of nonparty subcontractor Tipp Flooring Company (hereinafter Tipp Flooring). According to the plaintiff, he was installing flooring at the premises and was on his knees applying adhesive to the floor when his right knee pad, which he alleged was broken, shifted, causing him to fall and sustain injuries.

The plaintiff asserted, inter alia, a cause of action alleging a violation of Labor Law § 241(6). In its answer, Idlewild asserted, among other things, a cross claim for contractual indemnification against Bar Construction. Although the plaintiff filed the note of issue in May 2017, the parties agreed to continue with discovery depositions, the last of which took place in March 2018. Two months later, in May 2018, the plaintiff served a supplemental bill of particulars in which he alleged violations of additional Industrial Code sections, including 12 NYCRR 23–1.5(c)(3).

Shortly thereafter, Idlewild moved, inter alia, for summary judgment dismissing the Labor Law § 241(6) cause of action insofar as asserted against it and on its cross claim for contractual indemnification against Bar Construction. The plaintiff cross-moved, among other things, for leave to amend the bill of particulars to allege violations of additional Industrial Code sections, including 12 NYCRR 23–1.5(c)(3). In an order entered January 2, 2019, the Supreme Court, inter alia, denied those branches of Idlewild's motion which were for summary judgment dismissing the Labor Law § 241(6) cause of action insofar as asserted against it and on its cross claim for contractual indemnification against Bar Construction, and granted that branch of the plaintiff's cross motion which was for leave to amend the bill of particulars to allege violations of additional Industrial Code sections. Idlewild appeals.

"[L]eave to amend the pleadings to identify a specific, applicable Industrial 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" ( Ventimiglia v. Thatch, Ripley & Co., LLC, 96 A.D.3d 1043, 1047, 947 N.Y.S.2d 566 [internal quotation marks omitted]; see Tuapante v. LG–39, LLC, 151 A.D.3d 999, 1000, 58 N.Y.S.3d 421 ). Here, the Supreme Court providently exercised its discretion in granting that branch of the plaintiff's cross motion which was to amend the bill of particulars to allege violations of additional Industrial Code sections. The plaintiff's amendment did not prejudice the defendants and did not involve new factual allegations or raise new theories of liability (see Matute v. Town of Hempstead, 179 A.D.3d 1047, 1049, 114 N.Y.S.3d 688 ; Tuapante v. LG–39, LLC, 151 A.D.3d at 1000, 58 N.Y.S.3d 421 ).

The Supreme Court properly denied that branch of Idlewild's motion which was for summary judgment dismissing the Labor Law § 241(6) cause of action insofar as asserted against it. Labor Law § 241(6) imposes upon all general contractors and owners and their agents nondelegable duties to provide workers with proper safety devices and adequate protection (see Perez v. 286 Scholes St....