Navarro v. Malcarne Contr., Inc.
Opinion
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Bureau Thomas J.K. Smith, State Reporter
Navarro v Malcarne Contr., Inc.
2026 NY Slip Op 04776
July 29, 2026
Appellate Division, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This decision is uncorrected and subject to revision before publication in the Official Reports.
Francisco Navarro, plaintiff-respondent, Max Polaner, et al., appellants,
v
Malcarne Contracting, Inc., et al., defendants-respondents (and third-party actions).
Supreme Court of the State of New York, Appellate Division, Second Judicial Department
Decided on July 29, 2026
2024-10633, (Index No. 51213/24)
Angela G. Iannacci, J.P.
Valerie Brathwaite Nelson
Paul Wooten
Janice A. Taylor, JJ.
Varvaro, Cotter, Bender & Walthall, White Plains, NY (Joseph Varvaro of counsel), for appellants.
Cheriff & Fink, P.C., Mount Kisco, NY (Bruce J. Cheriff and Kenneth S. Fink of counsel), for plaintiff-respondent.
Hurwitz Fine P.C., Buffalo, NY (David R. Adams and Eric D. Andrew of counsel), for defendant-respondent Malcarne Contracting, Inc.
Roemer Wallens Gold & Mineaux LLP, Albany, NY (Matthew J. Kelly of counsel), for defendant-respondent Skyjack, Inc.
Black Marjieh & Sanford LLP, Elmsford, NY (James J. Lofrese of counsel), for defendant-respondent Partner Equipment Rentals, LLC.
DECISION & ORDER
In an action to recover damages for personal injuries, the defendants Max Polaner and Melissa Polaner appeal from an order of the Supreme Court, Dutchess County (Thomas R. Davis, J.), dated September 27, 2024. The order denied those defendants' motion, inter alia, pursuant to CPLR 3025(b) for leave to amend their answer and pursuant to CPLR 3211(a) to dismiss the complaint and all cross-claims insofar as asserted against them.
ORDERED that the order is affirmed, with one bill of costs.
On July 20, 2023, the plaintiff allegedly was injured while working on a project to replace skylights at a home in Accord (hereinafter the property), when the lift on which he was working tipped over, causing the plaintiff to fall off. The property was owned by the defendants Max Polaner and Melissa Polaner (hereinafter together the Polaners), who retained the defendant Malcarne Contracting, Inc. (hereinafter Malcarne), to serve as general contractor on the project. Malcarne, in turn, retained the plaintiff's company, Francisco Remodeling Incorporated (hereinafter Francisco), as subcontractor to perform the subject work.
In March 2024, the plaintiff commenced this action to recover damages for personal injuries against, among others, the Polaners, asserting causes of action alleging, inter alia, common-law negligence and violations of Labor Law §§ 200 and 240. Thereafter, the Polaners moved, among [*2]other things, pursuant to CPLR 3025(b) for leave to amend their answer to assert the affirmative defense of release and pursuant to CPLR 3211(a)(5) to dismiss the complaint and all cross-claims insofar as asserted against them on the ground that the action was barred by a release. In support of the motion, the Polaners submitted, inter alia, an agreement between Malcarne and Francisco and an accompanying attachment setting forth certain terms, including a "Liability Waiver" provision stating: "[i]f contractor is injured in the course of performing the specific work, Homeowner shall be exempt from liability for those injuries to the fullest extent allowed by law." The Polaners argued that such provision constituted a release that relieved them of any liability for injuries sustained by the plaintiff on the subject project. In an order dated September 27, 2024, the Supreme Court denied the Polaners' motion. The Polaners appeal.
"Motions for leave to amend pleadings should be freely granted, absent prejudice or surprise directly resulting from the delay in seeking leave, unless the proposed amendment is palpably insufficient or patently devoid of merit" (Bridgehampton Natl. Bank v D & G Partners, L.P., 186 AD3d 1310, 1311; see CPLR 3025[b]).
Here, the Supreme Court properly determined that the proposed amendments were patently devoid of merit (see Richardson v Island Harvest, Ltd., 166 AD3d 827, 828). Contrary to the Polaners' contention, the "Liability Waiver" provision was not sufficient to absolve them of liability for their own negligence, since that provision did not clearly and unequivocally express the intention to do so in "unmistakable language" (Gross v Sweet, 49 NY2d 102, 107; see Delaney v City of Mount Vernon, 28 AD3d 416, 417; Edge Mgt. Consulting, Inc. v Blank, 25 AD3d 364, 370). Further, to the extent the "Liability Waiver" provision may be read as absolving the Polaners of liability for a cause of action alleging a violation of Labor Law § 240(1), that provision is void as against public policy, since it would negate the purpose of Labor Law § 240(1) (see Mack v Ford Motor Co., 245 AD2d 1055, 1055), which "imposes on owners or general contractors and their agents a nondelegable duty, and absolute liability for injuries proximately caused by the failure to provide appropriate safety devices to workers who are subject to elevation-related risks" (Flores v Fort Green Homes, LLC, 227 AD3d 672, 673 [internal quotation marks omitted]).
The parties' remaining contentions either need not be reached in light of our determination or are without merit.
Accordingly, the Supreme Court properly denied the Polaners' motion, inter alia, pursuant to CPLR 3025(b) for leave to amend their answer to assert the affirmative defense of release and pursuant to CPLR 3211(a)(5) to dismiss the complaint and all cross-claims insofar as asserted against them on the ground that the action was barred by a release.
IANNACCI, J.P., BRATHWAITE NELSON, WOOTEN and TAYLOR, JJ., concur.
ENTER:
Darrell M. Joseph
Clerk of the Court
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