Smith v. Industrial Leasing Corp.

• Decision Date: 30 October 1986
• Citation: 124 A.D.2d 413,507 N.Y.S.2d 511
• Parties: Kathy L. SMITH, Appellant, v. INDUSTRIAL LEASING CORPORATION, Defendant, and Garden Way Manufacturing Company, Inc., et al., Respondents. (And a Third-Party Action.)
• Court: New York Supreme Court — Appellate Division

Page 511

507 N.Y.S.2d 511

124 A.D.2d 413

Kathy L. SMITH, Appellant, v. INDUSTRIAL LEASING CORPORATION, Defendant and Garden Way Manufacturing Company, Inc., et al., Respondents (And a Third-Party Action.)

Supreme Court, Appellate Division Third Department.

Oct. 30, 1986.

Shanley & Shanley (Donald J. Shanley, of counsel), Troy, for appellant.

Noonan, Troue, Gutermuth & O'Connor (Bruce A. Sutphin, of counsel), Troy, for respondents.

Before KANE, J.P., and MAIN, CASEY, MIKOLL and YESAWICH, JJ.

YESAWICH, Justice.

Appeal from an order of the Supreme Court at Special Term (Kahn, J.), entered December 20, 1985 in Rensselaer County, which denied plaintiff's motion for leave to amend her complaint.

This is a personal injury action stemming from a fall plaintiff suffered September 5, 1980. At the time she was employed by third-party defendant Service Systems Corporation and was working in a cafeteria located in a building leased by defendant Industrial Leasing Corporation to defendan Garden Way Manufacturing Company, Inc. and Garden Way, Inc. (hereinafter Garden Way). Service Systems was operating the cafeteria pursuant to a written agreement entered into with Garden Way.

On September 15, 1985, some four months after filing a note of issue, plaintiff sought to amend her complaint, which charged Garden Way with failing to provide a safe place to work in violation of Labor Law § 200, to assert a second cause of action against Garden Way based on the theory of respondeat superior. The proposed amendment alleges that under the terms of the agreement between Garden Way and Service Systems, which came into plaintiff's counsel's hands in March 1985 as a result of a motion for summary judgment successfully made by Industrial Leasing Corporation, Service Systems was Garden Way's agent and hence Garden Way was responsible for the slippery condition of the cafeteria floor where plaintiff fell. Special Term denied the motion on the grounds of laches and undue prejudice. This appeal followed.

Absent prejudice or surprise which is a direct product of the delay, motions to amend pleadings are to be freely granted (CPLR 3025[b] ). In the context of motions of this kind, "prejudice" and "surprise" mean:

* * * [the loss] of "some special right * * * some change of position or some significant trouble or expense that could have been avoided had the original pleading contained what the amended one wants to add" (Pegno Constr. Corp. v. City of New York, 95 A.D.2d 655, 656, 464 N.Y.S.2d 214, quoting Siegel, N.Y. Prac. § 237, at 289).

Though the trial is not imminent, Garden Way maintains serious prejudice will befall it if the amendment is allowed in that further discovery attributable to the proposed amendment will be necessary. Without more, that...