MONTEIRO v. WERNER CO INC

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

Gui Dias MONTEIRO, Appellant, v. R.D. WERNER CO., INC., et al., Defendants, Third-Party Plaintiffs,

City of New York, Third-Party Defendant-Respondent. Gui Dias Monteiro, Plaintiff, v. R.D. Werner Co., Inc., et al., Defendants.

Decided: January 27, 2003

A. GAIL PRUDENTI, P.J., DAVID S. RITTER, DANIEL F. LUCIANO and HOWARD MILLER, JJ. Huttner Mingino & Budashewitz, P.C. (Pollack, Pollack, Isaac & DeCicco, New York, N.Y. [Lee Michael Huttner and Brian J. Isaac] of counsel), for appellant. Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Larry A. Sonnenshein and Sharyn Rootenberg of counsel), for third-party defendant-respondent in Action No. 1.

In related actions, inter alia, to recover damages for personal injuries, Gus Dias Monteiro appeals from an order of the Supreme Court, Kings County (Hutcherson, J.), dated September 26, 2001, which denied his motion for leave to assert a direct cause of action against the City of New York, and thereupon, for summary judgment as against that defendant based on its alleged spoliation of evidence, or in the alternative, to impose liability upon the defendants and direct the City of New York to indemnify the other defendants.

ORDERED that the order is affirmed, with costs.

The plaintiff's complaint in Action No. 1, insofar as asserted against the City of New York, was dismissed by order of the Supreme Court, Kings County (Schneier, J.), dated September 4, 1998.   The plaintiff subsequently moved for leave to assert a direct cause of action against the City.

 Although leave to amend a complaint should be freely granted (see CPLR 3025[a] ), the movant must make some evidentiary showing that the proposed amendment has merit, and a proposed amendment that is plainly lacking in merit will not be permitted (see Citarelli v. American Ins. Co., 282 A.D.2d 494, 722 N.Y.S.2d 895;  Heckler Elec. Co. v. Matrix Exhibits-N.Y., 278 A.D.2d 279, 718 N.Y.S.2d 213).   While the plaintiff correctly asserts that an employee can maintain a common-law action against his or her employer if the employer's actions have impaired the employee's right to recover damages from a third-party tortfeasor (see DiDomenico v. C & S Aeromatik Supplies, 252 A.D.2d 41, 53, 682 N.Y.S.2d 452;  Vaughn v. City of New York, 201 A.D.2d 556, 607 N.Y.S.2d 726;  Coley v. Ogden Mem. Hosp., 107 A.D.2d 67, 485 N.Y.S.2d 876), the allegations in support of his proposed amendment do not demonstrate that his employer, the City, had a duty to preserve the scaffold involved in the accident (see Ripepe v. Crown Equip. Corp., 293 A.D.2d 462, 463-464, 741 N.Y.S.2d 64;  Curran v. Auto Lab Serv. Ctr., 280 A.D.2d 636, 637-638, 721 N.Y.S.2d 662), or that the City was on notice that the scaffold might be needed for future litigation (see DiDomenico v. C & S Aeromatik Supplies, supra at 53, 682 N.Y.S.2d 452).   The plaintiff does not allege that before the scaffold was returned to the City's storage facility he notified the City of his intention to pursue an action against a third-party tortfeasor.   Nor does he claim that he asked the City to preserve the identity of the scaffold, or that the City agreed to do so or otherwise had notice of future litigation (see McAllister v. Renu Indus. Tire Corp., 202 A.D.2d 556, 557, 609 N.Y.S.2d 92;  Coley v. Ogden Mem. Hosp., supra;  cf.   DiDomenico v. C & S Aeromatik Supplies, supra;  Kirkland v. New York City Hous. Auth., 236 A.D.2d 170, 666 N.Y.S.2d 609).   Contrary to the plaintiff's contention, neither the fact that the plaintiff was gravely injured nor that the Occupational Safety and Health Administration conducted an investigation at the worksite the following day put the City on notice of future litigation or a need to preserve the scaffold.   Thus, under the circumstances, the plaintiff's proposed amendment is without merit (see Ripepe v. Crown Equip. Corp., supra;  Curran v. Auto Lab Serv. Ctr., supra;  cf.  DiDomenico v. C & S Aeromatik Supplies, supra;  Kirkland v. New York City Hous. Auth., supra;  Vaughn v. City of New York, supra ).

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