WALKER v. Alistar Beverage Corporation, Respondent.

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

Rainey J. WALKER, Respondent-Appellant, v. PEPSICO, INC., Ball Corporation, Clinton's Ditch Cooperative Company, Inc., Appellants-Respondents, Alistar Beverage Corporation, Respondent.

Decided: March 13, 1998

Before GREEN, J.P., and LAWTON, WISNER, CALLAHAN and BALIO, JJ. Culley, Marks, Tanenbaum, Capell & Pezzulo by David Kittredge (Bradley Rosen, of counsel), Rochester, for Defendant-Appellant Pepsico, Inc. Harter, Secrest & Emery by Jeffrey Calabrese (Peter M. Blauvelt, of counsel), Rochester, for Defendant-Appellant Ball Corporation. Charles Dipasquale (Leo Fabrizi, of counsel), Buffalo, for Defendant Clinton's Ditch Co-op. Co., Inc. Martin & Iati (Valerie L. Barbic), Rochester, for Defendant-Appellant Alistar Beverage Corp. Faraci, Lange, Johns by Carol McKenna (Anthony Di Nitto, of counsel), Rochester, for Plaintiff-Respondent Walker.

 Supreme Court properly denied the motion of defendant Pepsico, Inc., and the cross motions of defendants Ball Corporation and Clinton's Ditch Cooperative Company, Inc., for summary judgment dismissing the complaint in this negligence action.   The complaint sought to recover damages for injuries resulting from plaintiff's consumption of a can of Pepsi-Cola that allegedly contained metal slivers.   Each of those defendants was in the manufacturing or distributive chain of the allegedly defective product and thus could be held liable in negligence (see generally, Sukljian v. Charles Ross & Son Co., 69 N.Y.2d 89, 94-95, 511 N.Y.S.2d 821, 503 N.E.2d 1358).   The record supports the court's determination that there are triable issues of fact whether each of those defendants was negligent (see, Trembley v. Coca-Cola Bottling Co., 285 App.Div. 539, 540-541, 138 N.Y.S.2d 332).

 The court erred, however, in denying plaintiff's cross motion to amend the complaint to assert causes of action for strict products liability and breach of implied warranty.   Plaintiff's delay in seeking to amend the complaint to add new theories of recovery is not sufficient to warrant denial of the motion where, as here, the original complaint gave notice of the occurrence giving rise to the proposed new causes of action (see, England v. Sanford, 167 A.D.2d 147, 148-149, 561 N.Y.S.2d 228, affd. 78 N.Y.2d 928, 573 N.Y.S.2d 639, 578 N.E.2d 437;  Goldstein v. Brogan Cadillac Oldsmobile Corp., 90 A.D.2d 512, 513, 455 N.Y.S.2d 19).   Plaintiff should be permitted to amend the complaint to assert the proposed causes of action because defendants had notice of the underlying transaction from the original complaint, which asserted a negligence claim, and the allegations in the original complaint are consistent with claims of strict products liability and breach of implied warranty (see, Gardner v. Fyr-Fyter Co., 55 A.D.2d 816, 390 N.Y.S.2d 289).  Although it would have been better practice for plaintiff to have included the proposed amended complaint with his cross motion to amend, we conclude that the denial of the cross motion was an improvident exercise of discretion (see, Barry v. Niagara Frontier Tr. Sys., 38 A.D.2d 878, 329 N.Y.S.2d 161) and grant leave to amend (see, England v. Sanford, supra, at 148-149, 561 N.Y.S.2d 228).   Thus, we modify the order by granting plaintiff's cross motion.

Order modified on the law and as modified affirmed without costs.

I dissent in part because I do not agree with the majority's conclusion that Supreme Court erred in denying plaintiff's cross motion to amend the complaint.   The determination whether to grant leave to amend a pleading is within the sound discretion of the trial court and that determination should not be lightly set aside (see, Edenwald Contr. Co. v. City of New York, 60 N.Y.2d 957, 959, 471 N.Y.S.2d 55, 459 N.E.2d 164;  Beuschel v. Malm, 114 A.D.2d 569, 494 N.Y.S.2d 185).   Here, plaintiff has failed to offer any reasonable excuse for his delay of over four years in seeking to amend the complaint.   Moreover, plaintiff was aware during that period of the facts upon which the cross motion was based.   Additionally, in support of his cross motion, plaintiff failed to include the proposed amended complaint and an affidavit of merit concerning the proposed causes of action.   Under those circumstances, the court's denial of plaintiff's cross motion was not an improvident exercise of discretion (see, Branch v. Abraham & Strauss Dept. Store, 220 A.D.2d 474, 475, 632 N.Y.S.2d 168).   Consequently, I would affirm.

MEMORANDUM: