RODRIGUEZ v. JMB LLC (2009)

In an action to recover damages for personal injuries, etc., the defendant JMB Architecture, LLC, appeals from an order of the Supreme Court, Suffolk County (Molia, J.), dated June 25, 2008, which granted the plaintiffs' motion for leave to amend the complaint to name it as a defendant.

ORDERED that the order is affirmed, with costs.

The plaintiff Noe Rodriguez (hereinafter the injured plaintiff) allegedly was injured while performing concrete work on the construction of a private residence owned by the defendants Joseph Direnzo and Angela Direnzo (hereinafter together the Direnzos).   The accident occurred when the injured plaintiff was cutting rebar with a concrete saw, and a metal shard hit him in the eye.   The defendant third-party defendant JMB Architecture, LLC (hereinafter JMB), served as the construction manager pursuant to a contract between it and the Direnzos.

The injured plaintiff and his wife, suing derivatively, commenced this action to recover damages for personal injuries against, among others, the Direnzos.   Thereafter, the Direnzos commenced a third-party action against JMB. Subsequently, the plaintiffs moved for leave to amend the complaint to name JMB as a defendant.   The Supreme Court granted the plaintiffs' motion, and we affirm.

 Leave to amend a pleading should be freely granted where the proposed amendment is not palpably insufficient or patently devoid of merit and will not prejudice or surprise the opposing party (see CPLR 3025[b];  Vista Props., LLC v. Rockland Ear, Nose & Throat Assoc. P.C., 60 A.D.3d 846, 847, 875 N.Y.S.2d 248;  Bennett v. Long Is. Jewish Med. Ctr., 51 A.D.3d 959, 960-961, 859 N.Y.S.2d 470;  Pellegrini v. Richmond County Ambulance Serv. Inc., 48 A.D.3d 436, 437, 851 N.Y.S.2d 268;  Comsewogue Union Free School Dist. v. Allied-Trent Roofing Sys., Inc., 15 A.D.3d 523, 524, 790 N.Y.S.2d 220). JMB failed to demonstrate that it would be prejudiced by the plaintiffs' delay in moving for leave to amend the complaint (see Cucuzza v. Vaccaro, 109 A.D.2d 101, 103-104, 490 N.Y.S.2d 518, affd. 67 N.Y.2d 825, 501 N.Y.S.2d 657, 492 N.E.2d 785;  Leibel v. Flynn Hill El. Co., 25 A.D.3d 768, 809 N.Y.S.2d 519;  McFarland v. Michel, 2 A.D.3d 1297, 1300, 770 N.Y.S.2d 544;   Crystal House Manor v. Totura, 5 A.D.3d 425, 426, 772 N.Y.S.2d 603), and the proposed amendment was neither palpably insufficient nor totally devoid of merit (see CPLR 3025[b];  Lucido v. Mancuso, 49 A.D.3d 220, 227, 851 N.Y.S.2d 238;  Sample v. Levada, 8 A.D.3d 465, 467-468, 779 N.Y.S.2d 96).

 Furthermore, contrary to JMB's contention, the Supreme Court providently exercised its discretion in granting the motion for leave to amend the complaint, despite the expiration of the statute of limitations (see CPLR 203[f];  Tyz v. Integrity Real Estate & Dev., Inc., 43 A.D.3d 1038, 842 N.Y.S.2d 475;  Vincente v. Roy Kay, Inc., 35 A.D.3d 448, 452, 826 N.Y.S.2d 361).   The plaintiffs demonstrated the applicability of the relation-back doctrine, since JMB had actual notice of their potential claim and was already a third-party defendant in the action (see Cucuzza v. Vaccaro, 109 A.D.2d at 103-104, 490 N.Y.S.2d 518;  Duffy v. Horton Mem. Hosp., 66 N.Y.2d 473, 477-478, 497 N.Y.S.2d 890, 488 N.E.2d 820;  Tyz v. Integrity Real Estate & Dev., Inc., 43 A.D.3d at 1038, 842 N.Y.S.2d 475;  Vincente v. Roy Kay, Inc., 35 A.D.3d at 452, 826 N.Y.S.2d 361).

JMB's remaining contentions are without merit.