SIXTH DIVISION March 30, 2007
No. 1-06-1901
LAZERRIC HARTZOG and ANGELA ) HARTZOG, ) Appeal from the ) Circuit Court of Plaintiffs-Appellants, ) Cook County, Illinois. v. ) ) No. 04 M4 1971 BRUNILDA MARTINEZ, ) ) Honorable Defendant-Appellee. ) Cheryl D. Ingram ) Judge Presiding. )
JUSTICE JOSEPH GORDON delivered the opinion of the court:
Plaintiffs, Lazerric and Angela Hartzog, brought suit against their landlord, Brunilda
Martinez, alleging that Lazerric was injured when he slipped and fell on the back stairs of their
apartment, which Martinez had negligently allowed to accumulate water. The circuit court
granted Martinez's motion for summary judgment and plaintiffs filed a motion to reconsider and
requested leave to file an amended complaint to allege that Lazerric's slip and fall was
additionally caused by Martinez's negligence in failing to properly light the stairwell. The circuit
court denied plaintiffs' motions. They now appeal only the circuit court's denial of their request
to file an amended complaint. For the reasons that follow, we affirm.
I. BACKGROUND
Plaintiffs' complaint, filed October 19, 2004, alleged that husband and wife, Lazerric and
Angela Hartzog, were tenants in an apartment building owned by Martinez. On October 19, No. 1-06-1901
2002, Lazerric was descending the rear exterior steps of the apartment to dispose of garbage in
the rear of the building when he fell and sustained injuries. The complaint further alleged that
the cause of Lazerric's fall was that Martinez had allowed water to accumulate in an unnatural
manner at the base of the steps and that other tenants of the building had tracked the water onto
the steps, making them slippery. Plaintiffs sought compensation for Lazerric's injuries as well as
for Angela's loss of the care, comfort, society, consortium and services of her husband.
On May 11, 2005, Martinez filed an answer in which she denied any negligence. She
further alleged that Lazerric failed to exercise reasonable care in descending the steps. On
August 16, 2005, the circuit court ordered that discovery be completed by September 13, 2005,
that depositions of the parties be completed by October 11, 2005, and that the matter be
continued to October 19, 2005, for status.
On October 6, 2005, Lazerric's deposition was taken. With regard to the day of his fall,
Lazerric testified that at about 8:30 to 9 p.m. that evening, he exited the rear door of his
apartment to take out the trash. He said he was holding the garbage bag with his right hand and
holding onto the stairway railing with his left hand. Lazerric described the stairs as consisting of
six or seven steps per landing. He said he made it down the first two steps and then slipped and
fell the rest of the way down. The following colloquy then took place between Lazerric and
defendant's counsel:
"Q. What happened that caused you to fall?
A. It was wet. It's the moisture, the wood and everything from when it
rained or whatever. There's puddles always down at the bottom. And I don't
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know if that moisture comes up or whatever, but it's always wet and moist.
***
Q. Do you know how the stairs became wet and moist?
A. It rained. ***
Q. When you fell, the stairs were still wet from the rain?
A. Yes.
Q. From the day before?
A. Right.
Q. Was there anything else other than the rain water on the stairs that you
believe caused you to fall?
A. No."
Later in the deposition, Lazerric testified regarding the lighting in the stairways:
Q. How did you feel after you fell down the stairs?
A. I was pissed off in a way. Attitude, pissed off. My body, my butt was sore.
Q. It was sore once you had fallen?
Q. What were you upset about?
A. I mean because of the fact that it's always like that. The light is out in the back
***."
Lazerric also stated that at the time of his fall the lights on the back porch had been out for about
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two weeks.
Near the end of the deposition, Lazerric again testified about the lighting:
"Q: Prior to falling down the stairs, sir, did you notice that the stairs were
wet?
A: It was dark. Couldn't see a thing. I was feeling my way.
Q: When did you first notice that the stairs were wet then?
A: When I hit the bottom. When I hit – when I fell.
*** When I was sliding down – when I landed and everything, my clothes
was wet. My buttocks area and part of my legs. It was moist. It was wet on me."
Finally, Lazerric testified that he was serving in the army in Iraq from January of 2003
(approximately two months after his fall) until June of 2004. Plaintiffs' attorney waived the right
to examine Lazerric.
On December 7, 2005, Martinez filed a motion for summary judgment in which she
argued that Lazerric's fall was caused by a natural accumulation of rainwater in no way
attributable to her negligence. She further argued that Angela's claims must also be dismissed
because they were derivative her husband's claim.
On January 5, 2006, plaintiffs filed a response to Martinez's motion for summary
judgement in which they argued that the accumulation of water on the rear steps was, in fact,
unnatural, and could, therefore, be attributed to Martinez's negligence. Plaintiffs further sought
to amend their complaint to allege that "puddles of water would form at the rear staircase each
and every time a tenant used the washing machine on the premises and that the water would form
4 No. 1-06-1901
since the sewer was in very poor condition and could not allow sufficient drainage." Plaintiffs'
response to Martinez's motion for summary judgment did not refer in any way to the lighting of
the staircase on the date of Lazerric's fall.
On February 8, 2006, the circuit court granted Martinez's motion for summary judgment,
finding that there was "no genuine issue of material fact that the plaintiff, Lazerric Hartzog,
slipped and fell due to a natural accumulation of rain water." The order further stated: "the case
is dismissed with prejudice, in its entirety, which includes Count I for negligence and Count II
for loss of consortium. This is a final and appealable order." On March 10, 2006, plaintiffs filed
a motion to reconsider and a motion for leave to amend their complaint pursuant to section 2-
2005(g) of the Code of Civil Procedure (735 ILCS 5/2-1005(g) (West 2004)). With regard to the
motion to reconsider, plaintiffs contended that whether the water on the rear steps of the
Hartzogs' apartment was a natural or unnatural accumulation was a question of fact not subject to
summary judgment. They further requested leave to amend their complaint to allege that
Martinez was negligent for failing to properly light the rear staircase. On June 7, 2006, the
circuit court denied both of plaintiffs' motions with prejudice.
On appeal, plaintiffs contend that the circuit court erred in denying their motion for leave
to amend the complaint. They contend that their proposed amendment would cure any previous
defect in their complaint and create a genuine issue of material fact. They further contend that
Martinez would not be prejudiced by the amendment because, prior to his fall, Lazerric had
complained to her about the lack of lighting on the rear staircase. Plaintiffs also deny that their
request to amend was untimely or that they should have brought it earlier. Plaintiffs have
5 No. 1-06-1901
expressly waived any appeal of the circuit court's entry of summary judgment or its denial of
their motion to reconsider.
In support of the orders below, Martinez first contends that plaintiffs waived their right to
claim that inadequate lighting contributed to Lazerric's fall because they knew of the condition
prior to filing their original complaint yet failed to raise it until after the court had granted
Martinez summary judgment. Martinez next contends that, although not argued below, plaintiffs'
claim regarding inadequate lighting is barred by the statute of limitations. Next, Martinez
contends that considering the factors involved in determining whether an amendment should be
allowed, the circuit court acted properly. Finally, Martinez contends that even if plaintiffs were
allowed to amend, they would not ultimately prevail because Lazerric admitted in his deposition
that the only cause of his fall was the wetness of the steps.
II. ANALYSIS
We first address Martinez's contention that plaintiffs' proposed amendment was barred by
the two-year statute of limitations applicable to personal injury lawsuits (see 735 ILCS 5/13-202
(West 2004)) because plaintiffs' attempted amendment, filed more than two years after the cause
of action arose, did not relate back to the original, timely filed complaint. In support of this
contention, Martinez cites Doherty v. Cummins-Allison Corp., 256 Ill. App. 3d 624, 628 N.E.2d
731 (1993), wherein the court held that an allegation of inadequate lighting did not relate back to
an allegation that defendants' loading dock was in disrepair. In Doherty, the court stated:
"[W]e hold that plaintiffs' assertions against [defendant] in their amended
complaint which alleged negligence in allowing the lights to burn out set up a
6 No. 1-06-1901
cause of action growing out of a different occurrence than the allegations in the
original complaint. Allowing the lights to burn out involves different conduct by
different persons at different times than permitting the dock to have an excessive
degree of slope or allowing it to fall into a state of disrepair. Most importantly,
plaintiffs' failure to allege these acts of negligence in their initial complaint
prevented defendants from discovering prior to the expiration of the statute of
limitations that plaintiffs sought to recover damages caused by the alleged burned
out lights. Thus, defendants had no opportunity to preserve evidence or
investigate these new allegations of negligence in a timely manner." Doherty, 256
Ill. App. 3d at 633, 628 N.E.2d at 737.
Although Martinez did not raise a statute of limitations argument in the court below but raised
this issue for the first time in her appellate brief, she contends that the circuit court's judgment
can be defended by raising any issue supported by the record whether or not the court ruled on
that issue.
In their reply brief, plaintiffs do not assert that Martinez has waived the statute of
limitations argument by not raising it below. Rather, plaintiffs contend that the limitations
period was tolled under the Soldiers' and Sailors' Civil Relief Act of 1940 (50 App. U.S.C. §525
(1940)) since it is undisputed that approximately two months after sustaining his injury, Lazerric,
who was a sergeant in the army, was deployed to Iraq for 18 months, from January of 2003 until
June of 2004. The Soldiers' and Sailors' Civil Relief Act states:
"The period of military service shall not be included in computing any period now
7 No. 1-06-1901
or hereafter to be limited by any law, regulation, or order for the bringing of any
action or proceeding in any court *** by or against any person in military service
***, whether such cause of action or the right or privilege to institute such action
or proceeding shall have accrued prior to or during the period of such service." 50
App. U.S.C. §525 (1940).
Thus, plaintiffs point out that although their cause of action initially accrued on October 19,
2002, if we toll the limitations period for the 18 months Lazerric was serving in the military, the
limitations period would not end in October of 2004, but would extend until April of 2006,
nearly a month after they filed their motion for leave to amend. Plaintiffs further contend that
regardless of the tolling effect of the Soldiers' and Sailors' Civil Relief Act, the claim in their
proposed amended complaint related back to the original complaint, which alleged that Martinez
breached her duty to provide a safe means of ingress and egress to her tenants' apartments.
Putting aside whether an appellee can raise a statue of limitations defense for the first
time on appeal, an issue not addressed by the appellants in this case, it would seem that, in any
event, the two-year limitations period for personal injury lawsuits (see 735 ILCS 5/13-202 (West
2004)) would not act as a bar in this case due to the effect of the Soldiers' and Sailors' Civil
Relief Act (50 App. U.S.C. §525 (1940)). In this regard, we note that if it were, in fact,
permissible for Martinez to raise the statute of limitations defense for the first time on appeal,
there could be no question that plaintiffs would then be within in their rights to invoke the
Soldiers' and Sailors' Civil Relief Act for the first time in their reply brief. However, we need
not rely upon the resolution of these limitations issues since, for the reasons discusses below, the
8 No. 1-06-1901
circuit court's decision to deny plaintiffs' motion for leave to amend must be affirmed regardless
of whether leave to amend was sought within or outside of the period of limitations.
With respect to plaintiffs' substantive rights to amend, we first note that their motion was
brought after Martinez filed a motion for summary judgment on plaintiffs' initial complaint, after
plaintiffs opposed that motion, and after the circuit court ruled in favor of Martinez and
dismissed the case with prejudice in its entirety. Plaintiffs' motion for leave to amend their
complaint was brought pursuant to section 2-1005(g), which states: "Amendment of pleading.
Before or after the entry of a summary judgment, the court shall permit pleadings to be amended
upon just and reasonable terms." 735 ILCS 5/2-1005(g) (West 2004).
Although this section indicates that amendments may be allowed after the entry of
summary judgment, there is strong argument to be made for the proposition that the right to
amend following a final summary judgment should be more restricted than the right to amend
prior to summary judgment or where the summary judgment is interlocutory. See Wells v. Great
Atlantic & Pacific Tea Co., 171 Ill. App. 3d 1012, 1020, 525 N.E.2d 1127, 1132 (1988) ("After
final judgment, the only amendments which may be allowed are ones to conform the pleadings to
the proofs"). The rationale for such differentiation may well be that a party ought not be allowed
to withhold his theory of a case while putting his opponent and the court to the burdens of
summary judgment on an earlier pleading only to then sidestep the court's ruling by seeking to
amend and start over. See In re Schwartz's Estate, 286 Ill. App. 310, 316, 2 N.E.2d 289, 291-92
(1936) ("a party may not submit a cause to the court upon one theory, and, having failed to
prevail therein, seek to inject an entirely new issue into the proceeding by amendment and have
9 No. 1-06-1901
the cause tried over"); Tires 'N Tracks, Inc. v. Dominic Fiordirosa Construction Co., 331 Ill.
App. 3d 87, 95, 771 N.E.2d 612, 619 (2002) ("It is improper practice to engage in piecemeal
litigation, seeing one theory of the case to conclusion before proposing another").
Under that perspective, it would seem that the standard to be employed in determining
whether a party should be allowed to amend after the entry of a final summary judgment order
would be more restrictive and akin to the standard used on motions to reconsider. The purpose
of motion to reconsider is to bring to the court's attention "(1) newly discovered evidence which
was not available at the time of the first hearing, (2) changes in the law, or (3) error in the court's
previous application of existing law." Gardner v. Navistar International Transportation Corp.,
213 Ill. App. 3d 242, 248, 571 N.E.2d 1107, 1111 (1991), citing Kaiser v. MEPC American
Properties, Inc., 164 Ill. App. 3d 978, 987, 518 N.E.2d 424, 429-30 (1987). A motion to
reconsider "should not be allowed in the absence of a reasonable explanation of why it was not
available at the time of the original hearing." Delgatto v. Brandon Associates, Ltd., 131 Ill. 2d
183, 195, 545 N.E.2d 689, 695 (1989).
This is consistent with the position taken by Professor Michael (see 4 R. Michael, Illinois
Practice §38.7, at 238-39 (1989)) and a similarly more restrictive approach has been articulated
in the appellate court decision in Loyola Academy v. S & S Roof Maintenance, Inc., 198 Ill.
App. 3d 799, 802, 556 N.E.2d 586, 588 (1990), rev'd 146 Ill. 2d 263 (1992). However, upon
review, the supreme court applied the more liberal standards applicable generally to amendments
brought under section 2-616(a) (735 5/2-616(a) (West 1992)). Loyola Academy v. S & S Roof
Maintenance, Inc., 146 Ill. 2d 263, 273, 586 N.E.2d 1211, 1215-16 (1992). However, as pointed
10 No. 1-06-1901
out in Illinois Practice (4 R. Michael, Illinois Practice §38.7 (2007 Pocket Part)), the Supreme
Court in Loyola Academy found the summary judgment order in that case not to be a final order,
but nevertheless did not articulate that any distinction should be drawn between nonfinal and
final summary judgments for purposes of amendment (see Loyola Academy, 146 Ill. 2d at 272-
74, 586 N.E.2d at 1215-16). Thus, the question still remains open as to whether we should
differentiate between final and non-final summary judgments when amendments are brought
pursuant to section 2-1005(g). Cf. Giacalone v. Chicago Park District, 231 Ill. App. 3d 639, 596
N.E.2d 731 (1992) (treating an amendment brought after final summary judgment pursuant to
section 2-1005(g) no differently than other amendments).
In this case, the summary judgment entered in favor of Martinez was final. Thus, there
can be no question that if the more restrictive standard were to apply plaintiffs would not prevail
because their proposed amended complaint is not based on newly discovered material, changes in
the law, or an error in the court's previous application of existing law. See Gardner, 213 Ill. App.
3d at 248, 571 N.E.2d at 1111. Moreover, plaintiffs have proffered no explanation for their
failure to previously allege that inadequate lighting contributed to Lazerric's fall.
However, even in the absence of any such distinction, the result would be no different if
one were to apply the general standards applicable to amendments under section 2-616(a). These
standards have been enunciated in the supreme court decision in Loyola Academy. In Loyola
Academy, the supreme court noted: "[s]ection 2-1005(g) 'reaffirms the power of the court to
permit amendments to pleadings at any time, as mandated by section 2-616(a) of the Civil
Practice Law.' [Citations.] Furthermore, since the ' "just and reasonable" terms of section 2-
11 No. 1-06-1901
1005(g) mirror the language used in section 2-616(a) [citation] [it] has been interpreted as
requiring the trial court to permit amendment if it will further the ends of justice.' [Citation.]"
Loyola Academy, 146 Ill. 2d at 273, 586 N.E.2d at 1215.
Section 2-616 of the Code of Civil Procedure provides in pertinent part:
"(a) At any time before final judgment amendments may be allowed on just and
reasonable terms, *** changing the cause of action or defense or adding new
causes of action or defenses, and in any matter, either of form or substance, in any
process, pleading, bill of particulars or proceedings, which may enable the plaintiff to sustain the claim fo
(c) A pleading may be amended at any time, before or after judgment, to conform
the pleadings to the proofs, upon terms as to costs and continuance that may be
just." 735 ILCS 5/2-616 (West 2004).
The Loyola court then established that when determining whether a trial court abused its
discretion in ruling on a proposed amendment, courts of review must look to four factors:
"(1) whether the proposed amendment would cure the defective pleading; (2)
whether other parties would sustain prejudice or surprise by virtue of the proposed
amendment; (3) whether the proposed amendment is timely; and (4) whether
previous opportunities to amend the pleading could be identified." Loyola
Academy, 146 Ill. 2d at 273, 586 N.E.2d at 1215-16, citing Kupianen v. Graham,
107 Ill. App. 3d 373, 377, 437 N.E.2d 774 (1982).
The court found that based on these factors, its plaintiff should have been allowed to amend.
12 No. 1-06-1901
Loyola Academy, 146 Ill. 2d at 273, 586 N.E.2d at 1216.
Plaintiffs contends that based on the four Loyola factors, the circuit court abused its
discretion in denying their petition for leave to amend. In support of the first factor, whether the
proposed amendment would cure the defective pleading, plaintiffs cite several slip-and-fall
negligence cases where claims regarding water, snow, or ice failed by virtue of there being no
evidence of unnatural accumulation, but additional claims regarding inadequate lighting saved
plaintiffs' complaints from summary judgment. For instance, in Kittle v. Liss, 108 Ill. App. 3d
922, 439 N.E.2d 972 (1982), plaintiff slipped and fell down the icy stairs of a tavern. The court
held that there was no affirmative showing that the accumulation of ice was anything other than
natural and that there was, therefore, no question of fact to pose to a jury. Kittle, 108 Ill. App. 3d
at 924, 439 N.E.2d at 973. However, the court held that regardless of that deficiency, a triable
issue of fact existed in that there was evidence to support plaintiff's allegation that the stairs were
inadequately lit in defiance of defendant's duty to provide a reasonably safe means of ingress and
egress from his place of business. Kittle, 108 Ill. App. 3d at 925, 439 N.E.2d at 974. Similarly,
in Weber v. Chen Enterprises, Inc., 184 Ill. App. 3d 847, 851, 540 N.E.2d 957, 960 (1989), the
court held that a question of fact existed as to whether plaintiff's fall in defendant's icy parking
lot was proximately caused by inadequate lighting, which could potentially be attributed to
defendant, or solely by the natural accumulation of ice, which could not be attributed to
defendant. See also Pollard v. University of Chicago, No. 04 C 7946 (N.D. Ill. March 14, 2006)
(although the concrete bollard on defendant's plaza was an open and obvious hazard in the light
of day, a question of fact existed as to whether lack of lighting at night caused the bollard to
13 No. 1-06-1901
become a concealed peril).
We note that, unlike in the instant case, the plaintiffs in Kittle, Weber, and Pollard all
initially alleged negligence on the basis inadequate lighting in their complaints. Nevertheless,
we agree with plaintiffs that, based on these cases, it is clear that had they been allowed to allege
that Lazerric's fall was caused by his inability to see that the steps were wet, the complaint would
not have been subject to the same summary disposition that occurred.
With regard to the next factor of prejudice, plaintiffs contend that since Martinez knew
that the lights were out prior to Lazerric's fall, the proposed amended pleading did not come as a
surprise and was, therefore, not prejudicial. Plaintiffs further contend that while Martinez knew
of the lighting issue prior to their proposed amendment, their attorney only discovered the issue
upon Lazerric's deposition. In opposition to plaintiffs' position, Martinez would contend that
regardless of whether she generally knew that Lazerric had complained prior to his accident
about the lights being out, she was unaware until the proposed amendment that Lazerric would
claim that the lack of lighting contributed to his fall. Consequently, Martinez contends she
would be prejudiced by the amendment because she had no reason to preserve evidence
regarding the lighting or to investigate the new allegation.
Prejudice to the party opposing an amendment is the most important of the Loyola
factors, and "substantial latitude to amend will be granted when there is no prejudice or surprise
to the nonmovant. Paschen Contractors, Inc. v. City of Kankakee, 353 Ill. App. 3d 628, 638, 819
N.E.2d 353, 362 (2004), citing Miller v. Pinnacle Door Co., 301 Ill. App. 3d 257, 261, 703
N.E.2d 628, 631 (1998). "Prejudice may be shown where delay before seeking an amendment
14 No. 1-06-1901
leaves a party unprepared to respond to a new theory at trial." Miller, 301 Ill. App. 3d at 261,
703 N.E.2d at 631. Although Lazerric may have complained to Martinez about lights being out
prior to his fall, there was no indication prior to plaintiffs' proposed amendment that Martinez
would be required to defend against such a claim and, therefore, Martinez had no reason to
preserve or obtain evidence to defend the claim. Moreover, regardless of what plaintiffs' attorney
knew or should have known about his client's fall prior to Lazerric's October 2005 deposition,
plaintiffs' attorney chose not to depose Lazerric about the lighting, and plaintiffs did not attempt
to amend their complaint after that deposition. Nor did plaintiffs attempt to amend their
complaint concurrently with their January 2006 response to Martinez's motion for summary
judgment. Thus, plaintiffs motion for leave to amend brought after summary judgment could
certainly have taken Martinez by complete surprise.
With regard to the third and fourth Loyola factors, whether the proposed amendment was
timely and whether there were previous opportunities to amend, plaintiffs contend that because
no trial date had been set and because discovery had not been closed, these factors should be
deemed to weigh in their favor. The stage of litigation at which a proposed amendment is
brought is certainly a relevant consideration. See Loyola, 146 Ill. 2d at 275, 586 N.E.2d at 1217;
Mendelson v. Ben A. Borenstein & Co., 240 Ill. App. 3d 605, 620, 608 N.E.2d 187, 196 (1992).
Here, plaintiffs brought their motion to amend on March 10, 2006. Although discovery was not
yet completely closed at that point, discovery as to the parties themselves was closed five months
earlier pursuant to the court's order setting October 11, 2005, as the "final" date for the
depositions of the parties. As noted, on October 6, 2005, Lazerric was deposed and testified
15 No. 1-06-1901
about the lighting on the day of his fall; however, plaintiffs did not bring their amendment for
five months, waiting until after resolution of Martinez's motion for summary judgment.
More importantly, however, plaintiffs have never explained their failure to raise the
lighting issue at an earlier time. The state of the lighting on the day of Lazerric's fall was not the
type of fact that would elude plaintiffs' discovery and, therefore, be understandably omitted until
such discovery could be made. In fact, it is clear from Lazerric's deposition that he knew on the
day of his fall that the light was out. Moreover, even if Lazerric did not understand the potential
legal implications of that fact, plaintiffs have proffered no reason why they did not bring their
motion for leave to amend at sometime after Lazerric's deposition and prior to the circuit court's
ruling on Martinez's summary judgment motion. In their response to Martinez's motion,
plaintiffs did request leave to amend their complaint to allege that other tenants' use of a washing
machine would cause an unnatural accumulation of water near the stair case, but they did not
also seek to allege negligence on the basis of insufficient lighting. Thus, since plaintiffs had
sufficient previous opportunity to make an amendment, the circuit court was well within the
latitude of its discretion to deny their belated motion for leave to amend.
Finally, we note that when ruling on whether to allow an amendment, a court "may
consider the ultimate efficacy of a claim as stated in [the] proposed amended pleading." Hayes
Mechanical, Inc. v. First Industrial, L.P., 351 Ill. App. 3d 1, 7, 812 N.E.2d 419, 425 (2004). In
this regard, there is merit to Martinez's assertion that even if plaintiffs were allowed to amend,
they could not prevail because Lazerric admitted in his deposition that the wetness on the stairs
was the sole reason that he fell. As noted, in that deposition, Lazerric was asked: "Was there
16 No. 1-06-1901
anything else other than the rain water on the stairs that you believe caused you to fall?" In
response, Lazerric answered: "no." Although considering Lazerric's later statements regarding
the lack of lighting, this "admission" may not necessarily have proved fatal to plaintiffs' claim
had the amendment been allowed, that statement certainly would have presented a formidable
hurdle for plaintiffs.
III. CONCLUSION
For all of the foregoing reasons, we affirm.
Affirmed.
FITZGERALD-SMITH, P.J., and McNULTY, J., concur.