McQuaig v. Opympia & York 125 Broad Street Co.

Appellate Division of the Supreme Court of New York

McQuaig v. Opympia & York 125 Broad Street Co.

247 A.D.2d 273, 668 N.Y.S.2d 614

CourtAppellate Division of the Supreme Court of the State of New York

DecidedFebruary 17, 1998

StatusPublished

Cited by3 cases

This text of 247 A.D.2d 273 (McQuaig v. Opympia & York 125 Broad Street Co.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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McQuaig v. Opympia & York 125 Broad Street Co., 247 A.D.2d 273, 668 N.Y.S.2d 614 (N.Y. Ct. App. 1998).

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Opinion

[274]*274Order, Supreme Court, New York County (Norman Ryp, J.), entered October 22, 1996, which, upon plaintiffs motion for re-argument, denied defendants’ motions to preclude plaintiffs claim of violation of 12 NYCRR 23-1.7 (d) and to dismiss the cause of action under Labor Law § 241 (6), unanimously affirmed, without costs.

We assume in defendant’s favor that plaintiffs assertion of 12 NYCRR 23-1.7 (d) as a basis for liability under Labor Law § 241 (6) required court leave (but compare, CPLR 3042 [b], with CPLR 3025 [a], [b]), and affirm what was, in effect, the granting of such leave. Defendants’ challenge to the merits of the claim — that 12 NYCRR 23-1.7 (d) does not apply where the foreign substance responsible for a slippery condition is an integral part of the construction process — requires both legal and factual review too embracing given the context. “[T]he policy of this Court has always been consistent with the rule that, in the absence of prejudice or unfair surprise, requests for leave to amend should be granted freely.” (Aetna Cas. & Sur. Co. v LFO Constr. Corp., 207 AD2d 274, 277.) Here, plaintiff alleges no new facts but only a regulation particularizing his originally pleaded allegation that defendants failed to provide him with a safe work place in violation of Labor Law § 241, discovery was still in progress at the time the amendment was sought, and defendants do not demonstrate any significant prejudice.

Concur — Sullivan, J. P., Rubin, Mazzarelli and Andrias, JJ.

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[274]*274Order, Supreme Court, New York County (Norman Ryp, J.), entered October 22, 1996, which, upon plaintiffs motion for re-argument, denied defendants’ motions to preclude plaintiffs claim of violation of 12 NYCRR 23-1.7 (d) and to dismiss the cause of action under Labor Law § 241 (6), unanimously affirmed, without costs.

We assume in defendant’s favor that plaintiffs assertion of 12 NYCRR 23-1.7 (d) as a basis for liability under Labor Law § 241 (6) required court leave (but compare, CPLR 3042 [b], with CPLR 3025 [a], [b]), and affirm what was, in effect, the granting of such leave. Defendants’ challenge to the merits of the claim — that 12 NYCRR 23-1.7 (d) does not apply where the foreign substance responsible for a slippery condition is an integral part of the construction process — requires both legal and factual review too embracing given the context. “[T]he policy of this Court has always been consistent with the rule that, in the absence of prejudice or unfair surprise, requests for leave to amend should be granted freely.” (Aetna Cas. & Sur. Co. v LFO Constr. Corp., 207 AD2d 274, 277.) Here, plaintiff alleges no new facts but only a regulation particularizing his originally pleaded allegation that defendants failed to provide him with a safe work place in violation of Labor Law § 241, discovery was still in progress at the time the amendment was sought, and defendants do not demonstrate any significant prejudice.

Concur — Sullivan, J. P., Rubin, Mazzarelli and Andrias, JJ.

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247 A.D.2d 273, 668 N.Y.S.2d 614, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcquaig-v-opympia-york-125-broad-street-co-nyappdiv-1998.

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