CASTILLO v. HAWKE ENTERPRISES LLC (2023)

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Suffolk County (David T. Reilly, J.), dated August 31, 2021.  The order, insofar as appealed from, denied the plaintiff's motion for leave to amend the amended complaint and bill of particulars to assert a cause of action alleging a violation of Labor Law § 240(1), denied, as academic, the plaintiff's separate motion for summary judgment on the issue of liability pursuant to Labor Law § 240(1), and granted that branch of the defendants’ motion which was, in effect, for summary judgment dismissing so much of the complaint as purportedly alleged a violation of Labor Law § 240(1).

ORDERED that the order is reversed insofar as appealed from, on the law and in the exercise of discretion, with costs, the plaintiff's motion for leave to amend the amended complaint and bill of particulars to assert a cause of action alleging a violation of Labor Law § 240(1) is granted, the plaintiff's separate motion for summary judgment on the issue of liability pursuant to Labor Law § 240(1) is denied on the merits, and that branch of the defendants’ motion which was, in effect, for summary judgment dismissing so much of the complaint as purportedly alleged a violation of Labor Law § 240(1) is denied.

The plaintiff allegedly sustained injuries while he and his coworker attempted to lower a 194–pound cylinder from a height of 10 to 11 feet above the ground, while performing work on a fire-suppression system at a gas station in Suffolk County.  While lowering the cylinder, the plaintiff's coworker dropped it approximately four inches, which trapped the plaintiff's hand between the cylinder and a pillar, causing injury to the plaintiff's left middle finger.  Thereafter, the plaintiff commenced this action alleging, inter alia, violations of “sections 241 and 241(b) of the Labor Law.” The plaintiff subsequently moved for summary judgment on the issue of liability pursuant to Labor Law § 240(1).  The defendants moved for summary judgment dismissing the complaint, arguing, among other things, that the plaintiff did not plead a Labor Law § 240(1) cause of action and, in any event, that this section of the Labor Law was not applicable because the plaintiff was only performing routine maintenance.  Thereafter, the plaintiff moved for leave to amend the amended complaint and bill of particulars to assert a cause of action alleging a violation of Labor Law § 240(1), claiming that the reference to Labor Law § 241 in his amended complaint was a typographical error, and that he had meant to plead a Labor Law § 240(1) cause of action.  The Supreme Court denied the plaintiff's motion for leave to amend, and denied, as academic, the plaintiff's motion for summary judgment, concluding that the proposed amendment to assert a Labor Law § 240(1) cause of action was “patently devoid of merit.”  The court granted the defendants’ motion for summary judgment dismissing the complaint.  The plaintiff appeals.

The Supreme Court improvidently exercised its discretion in denying the plaintiff's motion for leave to amend the amended complaint and bill of particulars to assert a cause of action alleging a violation of Labor Law § 240(1).  “Leave to amend a pleading should be freely given absent prejudice or surprise to the opposing party, unless the proposed amendment is palpably insufficient or patently devoid of merit” (Faiella v. Tysens Park Apts., LLC, 110 A.D.3d 1028, 1029, 975 N.Y.S.2d 71;  see CPLR 3025[b]).  Here, the proposed amendment corrected a typographical error, did not result in any prejudice or surprise to the defendants, and was not palpably insufficient or patently devoid of merit (see Cortes v. Jing Jeng Hang, 143 A.D.3d 854, 855, 40 N.Y.S.3d 434).

We note that, despite the fact that the plaintiff had not yet properly pleaded a Labor Law § 240(1) cause of action at the time that he made a motion for summary judgment on the issue of liability pursuant to Labor Law § 240(1), “summary judgment may be awarded on an unpleaded cause of action if the proof supports such cause and if the opposing party has not been misled to its prejudice” (Rubenstein v. Rosenthal, 140 A.D.2d 156, 158, 528 N.Y.S.2d 539;  see FPG CH 94 Amity, LLC v. Pizzarotti, LLC, 218 A.D.3d 654, 192 N.Y.S.3d 630).  Therefore, in light of our determination that the plaintiff's Labor Law § 240(1) cause of action was not palpably insufficient or patently devoid of merit, and that the proposed amendment did not result in any prejudice to the defendants, we examine the merits of the plaintiff's motion for summary judgment on the issue of liability on this cause of action.  Here, we find that this motion was properly denied, although for different reasons than those stated by the Supreme Court.  The plaintiff failed to meet his prima facie burden, as he did not prove, as a matter of law, that he sustained the type of elevation-related injury that Labor Law § 240(1) was intended to protect against.  Namely, where the cylinder fell only four inches but did so with such force as to crush the plaintiff's finger, there are triable issues of fact as to whether the elevation differential between the plaintiff and the falling object was de minimis (see generally Wilinski v. 334 E. 92nd Hous. Dev. Fund Corp., 18 N.Y.3d 1, 6, 935 N.Y.S.2d 551, 959 N.E.2d 488;  Wright v. Ellsworth Partners, LLC, 173 A.D.3d 1409, 1410–1411, 104 N.Y.S.3d 360;  Villanueva v. 114 Fifth Ave. Assoc. LLC, 162 A.D.3d 404, 405, 78 N.Y.S.3d 87).

Likewise, the defendants failed to meet their prima facie burden of establishing their entitlement to judgment as a matter of law dismissing so much of the complaint as purportedly alleged a violation of Labor Law § 240(1).  Contrary to the defendants’ contention, they failed to prove that the plaintiff was engaged in routine maintenance, and not repair work, at the time of the accident (see Izrailev v. Ficarra Furniture of Long Is., Inc., 70 N.Y.2d 813, 815, 523 N.Y.S.2d 432, 517 N.E.2d 1318;  Cullen v. AT&T, Inc., 140 A.D.3d 1588, 32 N.Y.S.3d 757;  Beehner v. Eckerd Corp., 307 A.D.2d 699, 699, 762 N.Y.S.2d 756, affd 3 N.Y.3d 751, 788 N.Y.S.2d 637, 821 N.E.2d 941;  Crossett v. Schofell, 256 A.D.2d 881, 681 N.Y.S.2d 819), or that the plaintiff was the sole proximate cause of his injuries (see Rico–Castro v. Do & Co N.Y. Catering, Inc., 60 A.D.3d 749,750–751, 874 N.Y.S.2d 576).

Accordingly, the Supreme Court should have granted the plaintiff's motion for leave to amend the amended complaint and bill of particulars to assert a cause of action alleging a violation of Labor Law § 240(1), denied the plaintiff's separate motion for summary judgment on the issue of liability pursuant to Labor Law § 240(1) on the merits, and denied that branch of the defendants’ motion which was, in effect, for summary judgment dismissing so much of the complaint as purportedly alleged a violation of Labor Law § 240(1).

CONNOLLY, J.P., IANNACCI, WOOTEN and FORD, JJ., concur.