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Supreme Court, Appellate Division, First Department, New York.

Robert GANCI, Plaintiff-Appellant, v. PORT AUTHORITY TRANS-HUDSON CORPORATION, Defendant-Respondent.

Decided: February 23, 1999

SULLIVAN, J.P., ELLERIN, WILLIAMS and WALLACH, JJ. Philip P. Vogt, for Plaintiff-Appellant. Joan F. Bennett, for Defendant-Respondent.

Order, Supreme Court, New York County (Lorraine Miller, J.), entered December 12, 1997, which, in an action to recover for personal injuries under the Federal Employers' Liability Act (“FELA”), denied plaintiff's postnote-of-issue motion to amend his bill of particulars so as to assert additional claims under Labor Law §§ 200, 240(1) and 241(6), Industrial Code 12 NYCRR §§ 23-1.5, 23-1.7 and 23-1.21, and Occupational Safety and Health Act (“OSHA”) 29 CFR § 1910.25, unanimously modified, on the law and the facts, to permit the amendment as to the alleged OSHA violation, and otherwise affirmed, without costs.

 The motion court's rejection of the proposed amendments on the ground of prejudice due to lateness is problematic in that the additional theories of recovery are based on the same facts originally alleged, and defendant's showing of prejudice was otherwise weak (see, Edenwald Contr. Co. v. City of New York, 60 N.Y.2d 957, 471 N.Y.S.2d 55, 459 N.E.2d 164;  Bobrowsky v. Lexus, 215 A.D.2d 424, 626 N.Y.S.2d 533).   Instead, the proposed amendments relating to the Labor Law and the Industrial Code should be rejected for lack of merit (see, Non-Linear Trading Co. v. Braddis Assocs., 243 A.D.2d 107, 675 N.Y.S.2d 5), it being well settled that FELA wholly preempts State-law remedies for railway employees injured in the course of employment (Rogers v. Consolidated Rail Corp., 2d Cir., 948 F.2d 858, 860).  The proposed amendment relating to OSHA should be accepted, an OSHA violation being properly admissible in a FELA action as evidence of negligence (see, Ries v. National R.R. Passenger Corp., 3d Cir., 960 F.2d 1156, 1162, 1165).


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