In Assevero v Hamilton & Church Props, the Second Department recently allowed plaintiffs to amend their 2008 complaint to include new allegations of wrongful death after the plaintiff passed away in 2015 – seven years after the underlying accident.
The case arose from a 2007 accident in which Hugh Assevero sustained injuries while working at a renovation project at a building owned by the defendants. Assevero alleged that he was descending an unsecured ladder, which shifted suddenly, causing him to fall from the third floor of the building to the basement. He commenced an action in 2008 to recover damages based upon, inter alia alleged violations of Section 240(1) and 241(6) of the Labor Law. Following the completion of depositions, Assevero moved for summary judgment on his 240(1) claim, and the defendants cross-moved for summary judgment dismissing the 240(1) and 241(6) on the basis of the homeowners’ exception. In 2012, the court granted defendants cross motion to dismiss the statutory claims and denied Assevero’s motion. Assevero appealed. Several months after the court partially granted the defendants’ cross-motion – i.e., during the pendency of his appeal –Assevero died. His wife substituted in as administrator of his estate. Approximately three years after Assevero’s death, the Second Department issued a decision on Assevero’s appeal, and denied the defendants’ summary judgment motion, finding that they failed to make a prima facie showing that their home qualified as a two family home.
Then, approximately three months after the Second Department’s original decision, the plaintiff moved the Supreme Court for leave to amend the complaint and add a new cause of action for Assevero’s wrongful death. The plaintiff argued that Assevero died as a result of “complications of treatment for pain resulting from” his fall from the ladder. In support of her motion, she submitted Assevero’s autopsy report, which indicated that the cause of his death was “acute intoxication due to the combined effects of fentanyl, benzodiazepines, lidocaine and cyclobenzaprine,” and that the manner of death was “misuse of prescription medication.” The Supreme Court granted the plaintiff’s motion to amend the complaint, and defendants appealed.
Now before the Second Department for the second time, the justices noted that under the CPLR, “leave to amend a pleading should be freely given when there is no significant prejudice or surprise to the opposing party and where the evidence submitted in support of the motion indicates that the proposed amendment may have merit.” The Court went on to note a movant’s low burden in these situations, explaining, “leave to amend will be granted unless such insufficiency or lack of merit is clear and free from doubt.” In the case at bar, the Second Department held that because Assevero died during his appeal and its prior order reinstated the causes of action alleging violations of §§ 240(1) and 241(6), the defendants failed to demonstrate surprise or prejudice resulting from the delay in asserting the wrongful death cause of action. Further, the Court held that the plaintiff’s the proposed amendment was “neither palpably insufficient nor patently devoid of merit.”
Perhaps what is most striking about this outcome is not the application of the law, but the underlying facts and the significant delay. Of course, this goes to show that even where a new allegation – especially in the case of wrongful death – significantly alters a defendant’s valuation of the case, courts mean it when they say, “leave to amend a complaint should be freely given.” Thanks to Evan King for his contribution to this post. Please email Brian Gibbons with any questions.