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Leonardi v. City of New York

294 A.D.2d 408 Court N.Y. App. Div. Decision date 2002-05-13 English

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p. 408
Dennis Leonardi, Appellant, v City of New York, Respondent.
[741 NYS2d 912]

—In an action to recover damages for personal injuries, the plaintiff appeals from a judgment of the Supreme Court, Queens County (Gavrin, J.), entered December 26, 2000, which, upon a jury verdict, and the denial of the plaintiffs oral motion, inter alia, for leave to amend his complaint to add a cause of action pursuant to Labor Law § 241 (6), is in favor of the defendant and against him dismissing the complaint.

Ordered that the judgment is affirmed, with costs.

Generally, leave to amend a pleading is freely given absent prejudice or surprise resulting from the delay (see CPLR 3025 [b]; Hilltop Nyack Corp. v TRMI Holdings, 275 AD2d 440 , 441). The decision to allow or disallow an amendment is committed to the court’s sound discretion, the exercise of which should not be lightly disturbed (see Edenwald Contr. Co. v City of New

p. 409
York, 60 NY2d 957 , 959; Castagne v Barouh, 249 AD2d 257 ). Here, the Supreme Court properly assessed the appropriate factors in denying the plaintiffs oral motion for leave to amend the complaint, including, among other things, that the case was certified as ready for trial for more than one year, the case was more than eight years old and the complaint already had been amended in 1992, and the plaintiff was well aware of the facts upon which the motion was predicated since the inception of the case (see Caruso v Anpro, Ltd., 215 AD2d 713 ; F.G.L. Knitting Mills v 1087 Flushing Prop., 191 AD2d 533 ). Accordingly, in light of the circumstances of this case and the prejudice the amendment would cause to the defendant, the Supreme Court properly denied the plaintiffs oral motion for leave to amend the complaint to add a cause of action pursuant to Labor Law § 241 (6) after the jury had been selected (cf. Edenwald Contr. Co. v City of New York, supra; McCaskey, Davies & Assoc. v New York Health & Hosps. Corp., 59 NY2d 755 , 757).

The plaintiffs remaining contention is without merit. Ritter, J.P., Smith, Luciano and Crane, JJ., concur.

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