Opinion
Index No. 521150/2019 Mot. Seq. No. 1
04-12-2024
LINDITA HASANAJ, Plaintiff, v. MAIMONIDES MEDICAL CENTER, Defendants MAIMONIDES MEDICAL CENTER, Third-Party Plaintiff, v. SODEXO OPERATION, LLC. Third-Party Defendant,
Unpublished Opinion
PRESENT: HON. RICHARD VELASQUEZ, JUSTICE.
DECISION AND ORDER
HON. RICHARD VELASQUEZ, JUSTICE.
The following papers NYSCEF Doc #'s 34 to 56 read on this motion:
Papers NYSCEF DOC NO'S
Notice of Motion/Order to Show Cause Affidavits (Affirmations) Annexed ___________ 34-40
Opposing Affidavits (Affirmations) ___________ 44-47; 48-50
Reply Affidavits___________ 51 -56
After having come before the Court on September 6, 2023 and the Court having heard oral argument and after a review of the foregoing the court finds as follows:
Plaintiff moves for and order pursuant to o CPLR §§3025(b) and 3043(b) to amend her previously served bills of particulars to the forms annexed to the accompanying affirmation; (ii) pursuant to CPLR §3025(b) amending the summons and complaint to include a direct claim against third-party defendant, Sodexo Operation, LLC. Third-Party Defendant, SODEXO OPERATIONS, LLC opposes the same. Defendant Maimondies partially opposes plaintiff application only to the extent she seeks to amend her complaint and/or bill of particulars to assert, that she slipped on "water, dirt and/or mud", Maimonides takes no position regarding the plaintiffs motion seeking to assert a direct claim against SODEXO OPERATIONS, LLC.
Plaintiff contends the initial bills of particulars served by prior counsel failed to adequately articulate the facts of plaintiffs claim or the injuries she sustained, and that no one will suffer any surprise or prejudice.
Third-Party Defendant, SODEXO OPERATIONS, LLC contends Plaintiffs negligence claims are time-barred pursuant to CPLR § 214 and Plaintiff cannot rely oh the relation-back doctrine to assert claims against SODEXO. Third-Party defendant contends that the Liverpool standard applies. Additionally, defendants contend the plaintiff cannot amend their Bill of Particulars to assert injuries not previously pled.
This action arises out of an alleged slip and fall accident that occurred on July 17, 2018 at Maimonides Medical Center, Plaintiff alleges she sustained injuries to her right ankle, right knee, right foot, right hand, right arm, right hip, head, neck and back when she allegedly slipped and fell when exiting an elevator. On November 22, 2022, Plaintiff moved to (1) amend her previously served bills of particulars pursuant to CPLR §§ 3025(b) and 3043(b), and (2) amend her complaint pursuant to CPLR § 3025(b) to assert a direct claim against Third-party defendant Sodexo, See Mot. Seq. No. 1 (NYSCEF Doc. Nos. 34-40). Third-party defendant Sodexo and Defendant, Maimonides Medical Center, timely opposed Plaintiffs motion. (NYSCEF DOC. NOs. 44-50).
It is well settled, in the absence of prejudice or surprise, leave to amend a. bill of particulars should be freely granted unless the proposed amendment is palpably insufficient or patently devoid of merit. Lorincz v. Castellano, 208 A.D.3d 573, 172 N.Y.S.3d 735 [2nd Dep't. 2022]; Jones v. Lynch, 298 A.D.2d 499, 748 N.Y.S.2d 509: [2nd Dep't. 2002]; Hothan v. Mercy Medical Center, 105 A.D.3d 905, 963 N.Y.S.2d 322 [2d Dept. 20137; Edenwald Contr. Co. v. City of New York, 60 N.Y.2d 957, 471 N.Y.S.2d 55 [1983], Delay does not bar amendment where, as here: the proposed amendment does not result in significant prejudice; discovery is ongoing; a note of issue has not been filed; and any new facts revealed by amended assertions tan be tested at a subsequent deposition, if appropriate. Abrahamian v. Tak Chan, 33 A.D.3d 947, 824 N.Y.S.2d 117 [2nd Dep't. 2006]; Onewest, F.S.B. v. Goddard, 131 A.D.3d 1028, 17 N.Y.S.3d 142 [2nd Dep't. 2015]; Edenwald Contr. Co. v. City of New York, 60 N.Y.2d 957, 471 N.Y.S.2d 55 [1983]; Worthen-Caldwell v Special Touch Home Care Servs., Inc,, 78 A.D.3d 822, 911 N.Y.S.2d 122 [2nd Dep't. 2010], Mere exposure; to greater liability does not constitute prejudice. See, Koch v. Acker Merrall, Condit Co., 114 A.D.3d 596, 981 N.Y.S.2d 70 [1st Dept 2014], In Deputron v. A &J Tours, Inc., 93 A.D.3d 629, 939 N.Y.S.2d 713 [2nd Dep't. 2012], an otherwise time-barred amendment to a complaint Was permitted where, just like the present case, the third-party complaint and the claim the plaintiff sought to assert against the third-party defendant arose out of the same conduct, transaction, or occurrence. In Deputron the Plaintiff was not required to demonstrate that the defendant and third-party defendant were united in interest, since the record demonstrates that the third-party defendant had actual notice of the plaintiff s potential claim against it within the applicable limitations period because it was a third-party defendant, See also, Rodriguez v Paramount Dev. Assoc., LLC, 67 A.D.3d 767, 888 N.Y.S.2d 595 [2nd Dep't. 2009]; Tyz v Integrity Real Estate & Dev., Inc., 43 A.D.3d 1038, 842 N.Y.S.2d 475 [2nd Dep't 2007]; Vincente v Roy Kay, Inc., 35 A.D.3d 448, 826 N.Y.S.2d 361 [2nd Dep't. 2006].
As to defendant, Maimonides contention that the amendment should be barred because the plaintiff is claiming a new theory of liability is without merit, there is no new theory of liability being offered.
Additionally, contrary to the third-party defendants contentions, the Liverpool standard does not apply to the case at bar because the Third-party defendant was served with the Summon on March 10, 2021, in this case the statute of limitations expired in March 2, 2022. Therefore, the third-party defendant was not a stranger to this action before the expiration of the statute of limitations. As such the relation back doctrine applies in the present case. Moreover, there is no surprise or prejudice regarding any of the amendments, discovery is ongoing, there is no new theory of liability, and third-party defendants are in possession of all medical records substantiating the proposed amendments as to the injuries. (See Bagan v. Tomer, 139 A.D.3d 577, 30 N.Y.S.3d 816 [2nd Dept. 2016]).
Accordingly, plaintiff's motion to amend is hereby granted in its entirety.
This constitutes the Decision/Order of the court.