Opinion
8589 Index 151760/16
03-05-2019
YU TIAN LI, Plaintiff–Respondent, v. LOUIE AND CHAN RESTAURANT, Defendant–Respondent, SM 303 Broome, LLC, et al., Defendants–Appellants.
Cartafalsa, Turpin & Lenoff, New York (Michael P. Bersak of counsel), for appellants. Napoli Shkolnik PLLC, New York (Kristina Georgiou of counsel), for Yu Tian Li, respondent. Bartlett LLP, Mineola (Robert G. Vizza of counsel), for Louie and Chan Restaurant, respondent.
Cartafalsa, Turpin & Lenoff, New York (Michael P. Bersak of counsel), for appellants.
Napoli Shkolnik PLLC, New York (Kristina Georgiou of counsel), for Yu Tian Li, respondent.
Bartlett LLP, Mineola (Robert G. Vizza of counsel), for Louie and Chan Restaurant, respondent.
Sweeny, J.P., Renwick, Gische, Kahn, Kern, JJ.
Order, Supreme Court, New York County (W. Franc Perry, III, J.), entered on or about April 11, 2018, which, inter alia, granted plaintiff's motion to amend the complaint and denied the motion of SM 303 Broome, LLC and 303 Broome Manager LLC (collectively Broome) to dismiss the complaint as against them, unanimously affirmed, without costs.
Plaintiff was injured when cellar doors situated in the sidewalk in front of premises owned, controlled and managed by Broome, suddenly opened, causing him to trip and fall. He commenced separate actions against Broome and defendant restaurant, which were subsequently consolidated. In the complaint against Broome, however, plaintiff inadvertently alleged that the accident involved a slip and fall in a parking lot. When Broome moved to dismiss on the basis of that error, plaintiff sought leave to amend to correct the error.
Leave to amend was properly granted absent any prejudice to Broome resulting from the pleading error (see Hernandez v. City of Yonkers, 74 A.D.3d 1025, 1026–1027, 903 N.Y.S.2d 150 [2d Dept. 2010] ; CPLR 3025[b] ). Contrary to Broome's contentions, plaintiff's motion included the proposed pleading and sufficiently specified the changes to be made, and any technical defect was properly overlooked (see Medina v. City of New York, 134 A.D.3d 433, 19 N.Y.S.3d 732 [1st Dept. 2015] ). Furthermore, the proposed pleading was clearly not patently insufficient or devoid of merit (see Ancrum v. St. Barnabas Hosp., 301 A.D.2d 474, 475, 755 N.Y.S.2d 28 [1st Dept. 2003] ; HSBC Bank v. Picarelli, 110 A.D.3d 1031, 974 N.Y.S.2d 90 [2d Dept. 2013] ).
Since the motion to amend was properly granted, the court properly denied Broome's motion to dismiss, which was based on the inadvertent pleading error (see also Mahler v. North Shore Camp, LLC, 145 A.D.3d 678, 679, 44 N.Y.S.3d 61 [2d Dept. 2016] ).