Presutti v. Suss

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: Before PINE; Bergin
• Citation: Presutti v. Suss, 678 N.Y.S.2d 187, 254 A.D.2d 785 (N.Y. App. Div. 1998)
• Decision Date: 02 October 1998
• Docket Number: No. 1,1
• Parties: 1998 N.Y. Slip Op. 8168 Mary PRESUTTI, Administratrix of the Estate of Santo D. Lanovara, Deceased, Respondent, v. David SUSS, Individually, Appellant, et al., Defendant. (Appeal)

Page 187

678 N.Y.S.2d 187

1998 N.Y. Slip Op. 8168

Mary PRESUTTI, Administratrix of the Estate of Santo D Lanovara, Deceased, Respondent, v. David SUSS, Individually, Appellant, et al., Defendant (Appeal No. 1.)

Supreme Court, Appellate Division Fourth Department.

Oct. 2, 1998.

Napier, Fitzgerald & Kirby (Kenneth Kirby, of counsel), Buffalo, for Defendant-Appellant David Suss.

Anthony F. Leonardo, Rochester, for Plaintiff-Respondent Mary Presutti.

Lacy, Katzen, Ryen (Jacqueline Thomas, of counsel), Rochester, for Defendant Suss, De Mott & Smith.

Before PINE, J.P., and LAWTON, PIGOTT, CALLAHAN and BOEHM, JJ.

MEMORANDUM:

Supreme Court (Bergin, J.) properly denied the motion of David Suss (defendant) to dismiss the complaint. Contrary to defendant's contention, the action is not barred by the discharge of defendant in bankruptcy where, as here, plaintiff seeks to proceed against him for the sole purpose of establishing the liability of a vicariously liable party or an insurer (see, Lumbermens Mut. Cas. Co. v. Morse Shoe Co., 218 A.D.2d 624, 625, 630 N.Y.S.2d 1003; Hilgarth v. Nankervis, 160 Misc.2d 311, 313, 612 N.Y.S.2d 542; Green v. Welsh, 2d Cir., 956 F.2d 30, 33). The court did not abuse its discretion in granting plaintiff's motion for leave to serve an amended complaint (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); defendant failed to show prejudice or surprise resulting from the delay (see, Murray v. City of New York, 43 N.Y.2d 400, 405, 401 N.Y.S.2d 773, 372 N.E.2d 560, rearg. dismissed 45 N.Y.2d 966, 412 N.Y.S.2d 1025, 384 N.E.2d 692). The court properly considered plaintiff's memorandum of law in response to defendant's reply memorandum of law. Plaintiff's memorandum of law was served by fax one day in advance of the return date (see, CPLR 2103[b][5]; 2214[b] ) and addressed issues raised in defendant's response to plaintiff's cross motion for leave to serve an amended complaint. The court properly determined that the negligence cause of action against the accounting firm is not barred by the Statute of Limitations; that cause of action merely adds a new theory of recovery arising out of transactions already at issue in this litigation (see, CPLR 203[f]; Duffy v. Horton Mem. Hosp., 66 N.Y.2d 473, 477, 497 N.Y.S.2d 890, 488 N.E.2d 820). Nor was plaintiff's motion for leave to serve an amended complaint barred by laches. The delay was not inordinate, and defendant failed to demonstrate surprise or prejudice resulting from the delay (cf., Barrett v. Barrett, 135 A.D.2d 1077, 1078-1079, 523 N.Y.S.2d 297, lv. denied 71 N.Y.2d 805, 529 N.Y.S.2d 76, 524 N.E.2d 430).

Justice Bergin properly signed the order entered March 3, 1997. Justice Bergin had determined the motion and cross motion before the case was transferred to Justice Polito, and the order effected that decision. Even assuming, arguendo, that Justice Polito should have signed the order, we note that Justice Polito would have been required to effect Justice Bergin's earlier decision on the motion and cross motion (see, CPLR 9002)....