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

Joseph NAPOLITANO, et al., Respondents, v. DGM-I CORPORATION, Appellant, et al., Defendant (And A Third-Party Action).

Decided: November 30, 1998

Before O'BRIEN, J.P., and PIZZUTO, JOY and GOLDSTEIN, JJ. Kelly Hodukavich & Goldberg (Carol R. Finocchio, New York, N.Y. [Lawrence B. Goodman] of counsel), for appellant. Stillman & Spiegel, P.C., Bronx, N.Y. (Lucille M. Barbato of counsel), for respondents.

In an action to recover damages for personal injuries, etc., the defendant DGM-I Corporation appeals from an order of the Supreme Court, Westchester County (Coppola, J.), entered November 6, 1997, which granted the plaintiffs' motion for leave to amend the complaint.

ORDERED that the order is affirmed, with costs.

Under the particular circumstances of this case, which involve a construction site accident wherein a worker fell through an opening in the floor injuring himself, the Supreme Court did not improvidently exercise its discretion in granting the plaintiffs' motion for leave to amend the complaint to add a cause of action pursuant to Labor Law § 240(1).   Significantly, the appellant was unable to demonstrate any prejudice or surprise by the delay in moving for leave to amend (see, Corsale v. Pantry Pride Supermarket, 197 A.D.2d 659, 602 N.Y.S.2d 887;  D'Onofrio v. St. Joseph's Hosp. Health Ctr., 101 A.D.2d 686, 476 N.Y.S.2d 33).   Moreover, contrary to the appellant's contention, a prior order by Justice Colabella did not preclude the granting of the plaintiffs' motion under the doctrine of law of the case.


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