SAHMANOVIC v. [And a Third-Party Action] (2021)

Order, Supreme Court, Bronx County (Norma Ruiz, J.), entered on or about November 13, 2020, which granted plaintiffs’ motion for leave to amend the complaint, unanimously reversed, on the law, without costs, and the motion denied.

While it is true that on a motion for leave to amend the complaint the movants “need not establish the merit of [their] proposed new allegations,” they must “show that the proffered amendment is not palpably insufficient or clearly devoid of merit” (Perrotti v. Becker, Glynn, Melamed & Muffly, LLP, 82 A.D.3d 495, 498, 918 N.Y.S.2d 423 [1st Dept. 2011]).

Plaintiffs’ motion for leave to amend the complaint should have been denied because they failed to demonstrate that the proposed amendment was not palpably insufficient.  The proposed claims under Labor Law §§ 200, 240(1), and 241(6) cannot apply here, since the injuries plaintiff Igbala Sahmanovic allegedly sustained occurred while she was performing a routine cleaning of the ground area outside the premises.  That type of work is outside the reach of Labor Law §§ 200, 240(1), and 241(6) (see generally Broggy v. Rockefeller Group, Inc., 8 N.Y.3d 675, 680, 839 N.Y.S.2d 714, 870 N.E.2d 1144 [2007];  Rizzuto v. L.A. Wenger Contr. Co., 91 N.Y.2d 343, 352, 670 N.Y.S.2d 816, 693 N.E.2d 1068 [1998];  Brown v. Christopher St. Owners Corp., 87 N.Y.2d 938, 939, 641 N.Y.S.2d 221, 663 N.E.2d 1251 [1996]).

Furthermore, the supplemental bill of particulars plaintiffs filed almost 12 years after the action was commenced cannot establish that notice was given to defendant, “since that is a device to amplify existing claims rather than add new theories of liability” (Kolb v. Beechwood Sedgewick LLC, 78 A.D.3d 481, 482, 910 N.Y.S.2d 437 [1st Dept. 2010]).