Rodschat v. Herzog Supply Co.

Appellate Division of the Supreme Court of New York

Rodschat v. Herzog Supply Co.

208 A.D.2d 1167, 617 N.Y.S.2d 586, 1994 N.Y. App. Div. LEXIS 10533

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

DecidedOctober 27, 1994

StatusPublished

Cited by1 cases

This text of 208 A.D.2d 1167 (Rodschat v. Herzog Supply 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.

Bluebook

Rodschat v. Herzog Supply Co., 208 A.D.2d 1167, 617 N.Y.S.2d 586, 1994 N.Y. App. Div. LEXIS 10533 (N.Y. Ct. App. 1994).

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Opinion

White, J.

Appeal from an order of the Supreme Court (Canfield, J.), entered June 25, 1993 in Ulster County, which granted plaintiff’s motion to amend the complaint.

Plaintiff commenced this personal injury action seeking damages for injuries he allegedly sustained when a maul he was using to split wood splintered. Thereafter, defendant brought a timely third-party action against, inter alia, Allegheny International, Inc. and Emhart Corporation. After the expiration of the Statute of Limitations, plaintiff, by order to show cause, moved to amend his complaint to add Allegheny as a direct defendant. Supreme Court granted the motion permitting plaintiff to add all of the third-party defendants as direct defendants. Emhart appeals.

Although plaintiff did not state in his order to show cause that he was seeking relief against Emhart, his attorney’s supporting affidavit, along with the proposed amended complaint annexed thereto, clearly indicated that this was the case. Moreover, Emhart appeared and vigorously opposed the motion. Under these circumstances, Supreme Court did not err in including Emhart within the scope of the motion since Emhart was not prejudiced (see, Mastandrea v Pineiro, 190 AD2d 841; 2A Weinstein-Korn-Miller, NY Civ Prac § 2214.01).

Inasmuch as Emhart was a participant in the litigation and [1168]*1168did not establish any actual prejudice resulting from plaintiffs delay, Supreme Court did not abuse its discretion in permitting the proposed amendment (see, Duffy v Horton Mem. Hosp., 66 NY2d 473, 477; Linares v Franklin Mfg. Corp., 155 AD2d 518). While we note that Emhart has raised a substantial issue as to whether it manufactured the maul, in view of plaintiffs statement in his brief that Allegheny’s expert claims that Emhart was the manufacturer, we concur with Supreme Court that the consideration of this issue should be deferred until the completion of discovery.

Mercure, J. P., Crew III and Casey, JJ., concur. Ordered that the order is affirmed, with costs.

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White, J.

Appeal from an order of the Supreme Court (Canfield, J.), entered June 25, 1993 in Ulster County, which granted plaintiff’s motion to amend the complaint.

Plaintiff commenced this personal injury action seeking damages for injuries he allegedly sustained when a maul he was using to split wood splintered. Thereafter, defendant brought a timely third-party action against, inter alia, Allegheny International, Inc. and Emhart Corporation. After the expiration of the Statute of Limitations, plaintiff, by order to show cause, moved to amend his complaint to add Allegheny as a direct defendant. Supreme Court granted the motion permitting plaintiff to add all of the third-party defendants as direct defendants. Emhart appeals.

Although plaintiff did not state in his order to show cause that he was seeking relief against Emhart, his attorney’s supporting affidavit, along with the proposed amended complaint annexed thereto, clearly indicated that this was the case. Moreover, Emhart appeared and vigorously opposed the motion. Under these circumstances, Supreme Court did not err in including Emhart within the scope of the motion since Emhart was not prejudiced (see, Mastandrea v Pineiro, 190 AD2d 841; 2A Weinstein-Korn-Miller, NY Civ Prac § 2214.01).

Inasmuch as Emhart was a participant in the litigation and [1168]*1168did not establish any actual prejudice resulting from plaintiffs delay, Supreme Court did not abuse its discretion in permitting the proposed amendment (see, Duffy v Horton Mem. Hosp., 66 NY2d 473, 477; Linares v Franklin Mfg. Corp., 155 AD2d 518). While we note that Emhart has raised a substantial issue as to whether it manufactured the maul, in view of plaintiffs statement in his brief that Allegheny’s expert claims that Emhart was the manufacturer, we concur with Supreme Court that the consideration of this issue should be deferred until the completion of discovery.

Mercure, J. P., Crew III and Casey, JJ., concur. Ordered that the order is affirmed, with costs.

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208 A.D.2d 1167, 617 N.Y.S.2d 586, 1994 N.Y. App. Div. LEXIS 10533, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rodschat-v-herzog-supply-co-nyappdiv-1994.

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