Cerros v. New York City Tr. Auth.

2024 NY Slip Op 30319(U)

Opinion

Cerros v New York City Tr. Auth.

2024 NY Slip Op 30319(U)

January 29, 2024

Supreme Court, New York County Docket Number: Index No. 153784/2021 Judge: Mary V. Rosado

Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication.

FILED: NEW YORK COUNTY CLERK 01/29/2024 05:01 PM INDEX NO. 153784/2021 NYSCEF DOC. NO. 117 RECEIVED NYSCEF: 01/29/2024

SUPREME COURT OF THE STATE OF NEW YORK !N'E W YORK COUNTY

PRESENT: 'HON .. MARY V. ROSADO PART 33M Justice

- - - - ------- ------------------------ ------------------.. ---X INDEX NO. 153784/2021 MAURICIO CERROS, ENMA CERROS, MOTION DATE 11 /'01 /2 023 Pl aintiff,

MOTION S!::Q, NO. -'-

0~ 03"------

- v-

NEW YORK CITY TRANS IT AUTHORI TY, METROPOLITAN TRANSPORTATION AUTHORITY, THE CffY OF NEW YORK, TUL LY CONSTR UCTI ON CO. DECISIONi + ORDER ON INC.,WALSH CONSTRU CTION COMPANY II, MOTION LlC,FEILDMAN LUMBER-US lBM, LILC,

Defendant.

-- --------- ---------· ---------------- ------ ----------- -------------X

NEW YOR K cnY TRANSIT AUTHORIT Y, METROPOLI TAN Third-Pa rty TRANSPORTATION AUTHORlTY, THE CITY OF NEW YORK Iri dex No. 5 95 079/202 3

Plaintiff,

-against-

'FELDMAN LUMBE R-US LBM , LLC

Defendant.

H•----- -. ------------ -·----- ---------------- -~ ----------- -~--• . X

The following e-filed documents , listed by NYSCEF document number (Motion 003) S-5, 86, 87, 88, 89 1,

90, 91 , 92, 93, 94, 95, 96, 97, 98, 99, 00, 101, 02 , 103, 107, 108, 109, 110, 12, 1 3, 114, 11S were rea d ori this motion to/for AMEND CAPTIONIP LEADIJNGS

Upon the: fc.>regoing documen ts Plaintiffs Mauricio Cerros ("Mauricio';) and Fnma Cerros'

(''Plaintiffa") motion for an Order granting Plaintiffs ' motion for leave to fi le and s,erve a first amended complaint is granted.

I. Ba.ckground and Procedural History laiJ1li ff :tv1aurfoio alleges that while •e mployed b ' \Va.lsh Construction Company 11, LLC (" \Vals.h '), he ,vas performing v,,:ork on the New York City T ·ansit Authority/J\,fotropolitan Transportation Autho ri ty Flood 1itigation and Resil"ency Projc,ct (the ·'Train Yard ') \vhen, "after

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FILED: NEW YORK COUNTY CLERK 01/29/2024 05:01 PM INDEX NO. 153784/2021 NYSCEF DOC. NO. 117 RECEIVED NYSCEF: 01/29/2024

removing s raps from a stack o f lumber that was improperly pbced and had not been properly seemed the stack of lumber collapsed a.nd fell down onto Plaintiff, causing him serious physical injuries" {N YSCEP Doc .. 1 al~ 5).

Plaintiffs commenced the instant action against Defendants New York City Transit Authority ("NYCTA"), Melropolitan T ransportation Authority (''MTA'')~ The City of Nt:\ York ''TCNY''), Tully Constmction Co. lnc. ('Tully"}, and \Valsh Constmction Company 11, LLC (' Walsh") by filing and serving a Summons and Complaint dated April 19, 2021 (NYSCEF Doc. 88). issue was j oined by the service of an Ans\ver by Defendants YCTA~MI A and TCN Y dated Ju 1t: 4, 2021. (NY "'CEF Doc. 99). In lieu of answ,eri ng, Defendants TuUy an d Walsh filed a mo lion to djsmiss on June ] 5 2021 (NYSCEF Doc. 9). Plairrtjffs ' action against TuUy and Walsh ,1>,•as later discontinued without prej udice pursuant to a Stipulation of Discontinuance dated September 20, 2021 (NYSCEF Doc. 90).

On January 26, 2023, Defendants NYCT · , 1TA and 'I C Y (the 'Third- Party Plaintiffs")

commenced a th ird-party action against Fe ldman Lumber~US L RM , LLC ( 'Fel dman") (N YSCEF

Doc. 37). F ~1dman is a lumber yard in tJ1e City or Nc\v York that pr,ovi des materials to various individuals and entities throughout the City of Ne,v York and, in this case, prov1ded materials to

Wal8h at the rain Yard (NY SCEF Doc . l 07 al I 3 ).

Subsequently. P laintiffs commenced a separate action against ·eldman under lndex No.

I 50588/2023 (the ' Separate Action') by filing and s rving a Stunmon::; and Vcri.fied Complaint dated Jan uary l 9, 2023 (N -SCEF Doc. 89). Issue vvas j oined by Feldma 1 in the Separate Action by servi ce or an Answer date.cl February 27: 2023 (NYSCEF Doc. 102). hereafter, the Separate Action was consolidated into this ac t.ion by Decision and O ·J.er dated June 1, 2023 {NYSCEF Doc. 73).

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FILED: NEW YORK COUNTY CLERK 01/29/2024 05:01 PM INDEX NO. 153784/2021 NYSCEF DOC. NO. 117 RECEIVED NYSCEF: 01/29/2024

Plaintiffs commenced a th1rd action (the "Third Action") by Sununons and Complaint dated October 30, 2023 (Exhi bit B to NY SCEF Doc. 98), asserting claims; inter alia, against the po ssible manufacturers and dist1'ibutors of the subject draft oflumber, sounding in strict products liability, breach ohvarranty and negligence (NYSCEF · )oc. 86 at ii 15). Plaintiffs intend lo move to conso lida te the Third Action vviU1 lhc instant action {NYSC F Doc. 86 at ' 3).

On November 1, 2023; Piaintiffs made the instant motion C1ot Seq. 3) (N'YSCEF Doc.

85 ) fm an Order granting Plain Li ffs leave to file an d serve a Firsl Am ended Co nplaint (N YSCEF Doc. 98) adding claims against Fddman for strict products liability and breach ofwarranly, as well as an additional claim of negligence againsl all defendants .. Feldman filed an Affim1ation in Op[ osition to Plainti.ffs' motion dated November 22, 2023 ( YSCEF Doc. 107). Plai 1ti ffs filed a Reply Affirmation in supp01t or their motion dated January 2, 2024 (NYSC F Doc. 112).

IT. Di.scH siori

.l\.. Standard

Leave to amend pleadings ls fredy granted in the absence or prej udice if the proposed amendment is not palpably insu ffici ent as a matter of law (lvfashinksy v Drescher, 188 A.D3 d 465 [ 1st Dept 2020)). A part_.1 opposing a motion to amend must demonstrate that it \Vou ld be substantially prejudiced by the amendment, or the amendments are putently devoid of merit (Greenburgh Eleven Union Free School Dist. V National Un.ion fire Ins .. Co., 298 AD2d 180, 18 1

ll st Dept 2002 J) .. Delay alone is not sufficient to deny leave to amend (Johnson v lWontejlore A1edical Center, 20~ AD3d 462 [l st D "pt 2022]).

B. Plaintiffs Failure lo Include an Affidavit of lvforit is not 1:atal to their Motion Preliminarily, Feldman cont•ends that Plaintiffs' motion must be denied because Plaintiff.<;

have failed to submit an affidavit of merit in support of the application to amer d YSCEF Doc.

15376412021 CERIROS MAUR 1C!IO vs.. NEW YORK CITY TRANSIT

1

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Motion No. 003

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FILED: NEW YORK COUNTY CLERK 01/29/2024 05:01 PM INDEX NO. 153784/2021 NYSCEF DOC. NO. 117 RECEIVED NYSCEF: 01/29/2024

W7 at 17). Specifica lly, Fddman cites to Schulty Roth & Zabel v. Ka sover, 28 A.D. 3d 404; 812 N. Y.S.2d 874 (1 st Dept. 2006) in support of the assertion that iTa]]though the standard for amending a plead.ing is less exacti ng than in moving for summary judgment, there still must be an A ffidavit of Me1i t or an offer of evidence simitar to that supporting a summary judgment motion.·• Ilov,.:ever, more recent decisions by the Fist Department have he ld) conversely, that on a motion for leave to amend pleadings, a plaintiff is ··· not requi red to support its all egations \vith evidence or an affidav it of meri t" (St. .1Vicholas J·V 126 l,. P. v Republic Inv. Co.. LLC. l 03 A03d 488, 488~ 489 [}st Dept 202 I J). As such, P lainli ITs' failure to submit an affidavit of merit is. not fatal t > thei r n10tion ror leave to file a first amended complaint.

C. Plaintiffs) Motion for Le.ave to File a First i\.mended Com taint is Granted As stated above, to successfu lly oppose a motion lo a.mend pleadings a party must demonstrate that it would be substantially prejudiced hy the amendment, or that the amendments are patently devoid of merit (Greenburgh Eleven Union Free School Dist. V National Union Fire Ins. Co .• 298 AD2d 180, 181 [1st D ept 2002]}.

Feld.man 1 s opposition fafls to demonstrate or asserl that granting P laintiffs' motion for leave to file a first amended c.ornplaint wou ld be prejudicial to Feldman in any v,.:ay (NYSCEF D01,:. l 07). Feld man's primary argument in opposition, wi th respect to the product Eability c.laim

included in P laintiffs' H rst .A.:mended Complaint, is that Plaintiffs have " not s,ct forth a single basis in su port of rt11eir] application to amend the mm plaint as then:: has been no testi mony tha lherc \vas any .issue with the stack of lumber that fell on to the pla 'ntiff o ther than fallin~ o ver due to vibration from the near by pile dri ving activities" ( YSCLP Doc. 107 at ii 14). I fo\vever; Plaintiffs' claim in th1; Fi rst Amended Complai nt is i'not that the individual pieces of 3x 1Ox 16 lumber were defcct1ve ," but rather that "'the suhject draft of lumber collectively as manufactu red v,dth all of its

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component parts - 1ncluding defective dunnage which was insufficient lo support and stabilize the dra ft - ·was defective as manufactured, either in its design and/or manufactme and/or failure to warn;1 (NSYCEF Doc_ 98 at ~Iii 90-102). Plaintiffs' Bill of Particulars specifically alleges, inter alia that Feldman us•ed improper and defe ctive dunnage, failed to us•e and properly place dunnage, allowed an permitted the use and operation of faulty and defective equiprn.ent including the dunnage, bands and ::;tack of lumber, and provided inadequately designed dunnage" (NY ,CEF Doc. 10 1 al ~ 7)_

ln hgh of the foregoing , the Court finds that Plaintiffs' proposed Fi.rst Amended Complaint is not palpably insufficient as a matter of la,:v and \Vilt not result in subslantial prejudice to any party. As such, Plaintiffs' motion for leave to file and serve lhe Proposed · ·irst Ame1 ded Complai nt is granted.

Accordingly, il is he.reby, ORDERFD that Plaintiffs Ivfour' cio Cenos and Enma Cerros' mot' on for an Order granting Plajntiffs' motion for leave to file and serve a first amended Lomplaint is granted; and it is further ORDERED tha.t Plaintiff · notion for leave to amend the complain t herein is granted, and the amended complaint in the proposed fonn annexed to the moving papers (NYSCEF Doc .. 98)

shun he deemed served upon service ora copy of this order with notice of 'ntry thcfeof; and it is further

ORDERED that within 10 days of entry, counsel for Plainli ffs shall serve a copy of this Decisi.011 and Order; with notice of entry, on all parties lo this action; and it is fmther ORDERE D that the defendan ls shal1 serve an answer to the amended complaint or o henvise re ·pond thereto \Vithin 20 days from the date of said service~ and i is further

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FILED: NEW YORK COUNTY CLERK 01/29/2024 05:01 PM INDEX NO. 153784/2021 NYSCEF DOC. NO. 117 RECEIVED NYSCEF: 01/29/2024

ORDERED that on or before January 23, 2024, the parties shaJl su bmit a propo sed Status Con erence Order via NYSCEF and e-mail to SFC -Part3 3-Clerk(q,[nvcourts.gov. If the parti es are unable to agree upon a proposed Status Conference Order, the parties shaU appear for an in-person status conference on January 24, 2024 al 9:30 a.m. in 60 Centre St ·eet, Room 442 New York, New York· and i is further ORDERED that the Clerk of tl1e Court is directed to enter j udgment accordingly.

This constitutes the Decision and Order of the Court.

1129/2024

DATE HON. M RY V. ROSADO, J ,S ,C.

CH CKONE: CAS c DISPOSED NON.:FINAL 0 1-SPOSITION

GRANITED □ DENIED GRANTED lN PART □ OTIHE:R APPUCATION; SUTLEORDER SUBMIT ORDER

CH E:CK IF APPROPRIATE: I N,CLUDES T RANSFE RIREASSIG N AOUCIARY APPOI N!TMEiNT REFERENCE

153 784'2021 CERROS, MA URICIO vs. N E:W YORK CITY T RAN$,I T Page e of & Motiion No, 003

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