Monteleone v. Cardiff Corp.

88 A.D.2d 587, 449 N.Y.S.2d 792, 1982 N.Y. App. Div. LEXIS 16760

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 3, 1982
• Status: Published

Opinion

— In a negligence action to recover damages for personal injuries, etc., defendant Cardiff Corporation appeals from so much of an order of the Supreme Court, Kings County (Held, J.), dated October 14, 1981, as denied its motion for summary judgment and granted plaintiffs’ cross motion to amend their complaint. Order affirmed, insofar as appealed from, with $50 costs and disbursements. Plaintiff Gasper Monteleone (hereinafter plaintiff) and his spouse brought suit for injuries sustained when he fell down an elevator shaft in the course of his employment as freight elevator operator. Defendant Cardiff owns the building in which plaintiff was employed. If the plaintiff was employed by Cardiff then workers’ compensation is plaintiffs’ exclusive remedy as against it. However, a question had been raised as to whether plaintiff actually worked for the owner of the building, the managing agent of the building, or both. Special Term, therefore, correctly denied Cardiff’s motion for summary judgment. We also find that Special Term did not abuse its discretion in granting plaintiffs’ cross motion for leave to amend their complaint. CPLR 3025 (subd [b]) provides that “[ljeave shall be freely given” provided that the remaining parties are not prejudiced. Cardiff has not shown prejudice. It is no surprise to Cardiff that it now must come forth with evidence to show the employment relationship between it and the plaintiff (see Murray v City of New York, 43 NY2d 400). For the foregoing reasons, we affirm. Damiani, J. P., Titone, Gulotta and Bracken, JJ., concur.