ENRIQUEZ v. HOME LAWN CARE AND LANDSCAPING INC (2008)

In an action to recover damages for personal injuries, the defendants Home Lawn Care and Landscaping, Inc., and James Egloff appeal (1), as limited by their brief, from so much of an order of the Supreme Court, Westchester County (Jamieson, J.), entered December 20, 2006, as granted the plaintiff's motion pursuant to CPLR 3025(b) for leave to amend the complaint to add James Egloff as a party defendant, and (2) from an order of the same court (Giacomo, J.), entered June 5, 2007, which denied that branch of the motion of the defendant James Egloff which was pursuant to CPLR 3211 (a)(7) to dismiss the complaint insofar as asserted against him for failure to state a cause of action, and denied, as premature, that branch of the motion of the defendant James Egloff which was for summary judgment dismissing the complaint insofar as asserted against him.

ORDERED that the appeals by the defendant Home Lawn Care and Landscaping, Inc., are dismissed, as that defendant is not aggrieved by the orders appealed from (see CPLR 5511);  and it is further,

ORDERED that the order entered December 20, 2006, is affirmed insofar as appealed from by the defendant James Egloff;  and it is further,

ORDERED that the order entered June 5, 2007, is affirmed insofar as appealed from by the defendant James Egloff;  and it is further,

ORDERED that the plaintiff is awarded one bill of costs, payable by the appellants.

 Contrary to the contention of the defendant James Egloff, the Supreme Court properly granted the plaintiff's motion for leave to amend the complaint to add him to the action as a party defendant, since the plaintiff alleged facts which, if proven true, could subject Egloff to personal liability for the plaintiff's injuries (see generally CPLR 1001[a];  City of New York v. Long Is. Airports Limousine Serv. Corp., 48 N.Y.2d 469, 475, 423 N.Y.S.2d 651, 399 N.E.2d 538;  Bay Ridge Lumber Co. v. Groenendaal, 175 A.D.2d 94, 571 N.Y.S.2d 798).

Similarly, the court properly denied that branch of Egloff's motion which was pursuant to CPLR 3211(a)(7) to dismiss the complaint insofar as asserted against him for failure to state a cause of action.   Assuming the truth of the allegations and construing them liberally in favor of the plaintiff (see Nonnon v. City of New York, 9 N.Y.3d 825, 842 N.Y.S.2d 756, 874 N.E.2d 720;  AG Capital Funding Partners, L.P. v. State St. Bank & Trust Co., 5 N.Y.3d 582, 591, 808 N.Y.S.2d 573, 842 N.E.2d 471;  Leon v. Martinez, 84 N.Y.2d 83, 614 N.Y.S.2d 972, 638 N.E.2d 511;  Palo v. Cronin & Byczek, LLP, 43 A.D.3d 1127, 843 N.Y.S.2d 149), the complaint adequately states a cause of action against Egloff in his individual capacity.

 Finally, that branch of Egloff's motion which was for summary judgment dismissing the complaint insofar as asserted against him was properly denied as premature, since the motion was made prior to the joinder of issue by Egloff (see CPLR 3212[a];  City of Rochester v. Chiarella, 65 N.Y.2d 92, 101, 490 N.Y.S.2d 174, 479 N.E.2d 810;  Sonny Boy Realty, Inc. v. City of New York, 8 A.D.3d 171, 780 N.Y.S.2d 123, affd. 4 N.Y.3d 858, 798 N.Y.S.2d 351, 831 N.E.2d 408;  Chakir v. Dime Sav. Bank of N.Y., 234 A.D.2d 577, 578, 651 N.Y.S.2d 622).