### Cashabamba v De Filippo 2024 NY Slip Op 31877(U) May 31, 2024 Supreme Court, New York County Docket Number: Index No. 156045/2022 Judge: Mary V. Rosado Cases posted with a "30000" identifier, i.e., 2013 NY Slip

Op 30001(U), are republished from various New York State and local government sources, including the New

York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication.NYSCEF DOC. NO. 93 INDEX NO. 156045/2022 RECEIVED NYSCEF: 05/31/2024

PRESENT: 

### SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY HON. MARY V. ROSADO PART Justice 33M



### --------------------- ----- --------X INDEX NO. 156045/2022

ERIKA CASHABAMBA, Plaintiff,-vVINCENT DE FILIPPO, TRUSTEE OF THE DESERT ROSE TRUST, CTI CONSTRUCTION INC., Defendant. -----------------------------------------------------------X

CTI CONSTRUCTION INC. Third-Party Plaintiff,-againstRIDGE CONTRACTING CORP. Third-Party Defendant. --------------------------------------------------------------------------------X MOTION DATE 12/07/2023 MOTION SEQ. NO. 003 DECISION + ORDER ON MOTION

Third-Party Index No. 595130/2023

The following e-filed documents, listed by NYSCEF document number (Motion 003) 1, 16, 18, 24, 41, 42, 43,44,45,46,47,48, 92 were read on this motion to/for AMEND CAPTION/PLEADINGS 

### Upon the foregoing documents, DefendantVincent Defilippo, Trustee ofthe Desert Rose Trust's ("Defilippo")motionfor an Order granting Defilippo leaveto amendhis Answerto assert crossclaims for breach ofcontract, forgery and defense and indemnification again Defendant CTI Construction Inc. ("CTI"), and for defense and indemnification against Third-Party Defendant Ridge Contracting Corp. ("Ridge") is granted. I. Background 

### On July 20, 2022 Plaintiff Erika Cashabamba ("Plaintiff') commenced the underlying action against Defendants CTI and Defilippoto recover forpersonal injuries sustainedby Plaintiff

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when she fell from an elevated work surface at 163 West 76th Street, New York, New York (the "Premises") (NYSCEF Doc. 1 ). Plaintiffs Complaint alleges that Defendant Defilippo owned the Premises and that Defendant CTI was acting as the General Contractor at the Premises on the date ofPlaintiffsaccident (NYSCEF Doc. 1). Inthe Bill ofParticulars Plaintiffalleges that Thirdparty Defendant Ridge Contracting employed Plaintiffonthe date ofher accident (NYSCEF Doc. 47 at 112). On October 12, 2022 Defendant Defilippo filed an Answer denying Plaintiffs allegations (NYSCEFDoc. 16). Subsequently, onNovember 15, 2022 DefendantCTI filed aVerifiedAnswer denying Plaintiffs allegations against it and asserting crossclaims against Defilippo for contribution, commonlawindemnification, contractual indemnification and breach ofcontract for failure to procure insurance (NYSCEF Doc. 18) 

### On February 14, 2023 Defendant CTI impleaded Third-party Defendant Ridge asserting
causes ofaction for contractual indemnification, common law indemnification, breach ofcontract for failure to procure insurance, and breach ofcontract for failure to indemnify (NYSCEF Doc. 24). On December 7, 2023 Defendant Defilippo brought the instant motion seeking to amend its Answer to assert crossclaims for breach ofcontract, forgery and defense and indemnification again Defendant CTI, and for defense and indemnification against Third-Party Defendant Ridge. While there is no opposition to the portion of DeFilippo's motion seeking leave to amend his Answerto assert crossclaims against Ridge, Defendant CTI opposes DeFilippo's motion to assert crossclaims against CTI on the ground that DeFilippo's proposed crossclaims are insufficient as a matter oflaw (NYSCEF Doc. 45).

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II. Discussion It 

### is well settled that leave to amend pleadings is freely granted in the absence ofprejudice ifthe proposed amendment is not palpably insufficient as a matter oflaw (Mashinksy v Drescher, 

### 188 AD3d 465 [1st Dept 2020]). Further, the First Departmenthas heldthat, on a motion for leave to amend a pleading "the proponent must allege legally sufficient facts to establish a prima facie
cause ofaction or defense in the proposed amended pleading. If

### the facts alleged are incongruent with the legal theory relied on by the proponent the proposed amendment must fail as a matter of law" (Daniels v Empire-Orr, Inc., 

### 151 AD2d 370,371 [1stDept 1989]). Aparty opposing amotion to amend must demonstrate that it would be substantially prejudiced by the amendment, or the amendments are patently devoid ofmerit (Greenburgh Eleven Union Free SchoolDist. VNational Union Fire Ins. Co., 

### 298 AD2d 180, 181 [1st Dept 2002]). However, "[t]he merit ofa proposed amended pleading mustbe sustained...unless the alleged insufficiency or lack ofmerit is clear and free from doubt" (Daniels 

### at 371). Therefore, the party opposing the motion to amend "must
overcome a presumption ofvalidity in favor ofthe moving party, and demonstrate that the facts alleged and relied upon in the moving papers are obviously not reliable or are insufficient" (Id.). 

### While sufficient facts must be alleged to supportthe proposed amendment to the pleadings, those facts need not be proven at this stage (Id.). 1. 

### DeFilippo's Motion for Leave to Amend his Answerto Assert Crossclaims Against Third-Party Defendant Ridge is Granted Here, there is no opposition to the portion ofDeFilippo's motion seeking to amend his Answer to assert crossclaims against Third-Party Defendant Ridge, and no party has shown how they might be prejudiced by allowing Defilippo to Amend his Answer to include the proposed crossclaims against Ridge. Therefore, the portion ofDeFilippo's motion seeking leave to amend his Answer to assert crossclaims against Third-Party Defendant Ridge is granted.

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DeFilippo's Motion for Leave to Amend his Answerto Assert Crossclaims Against Defendant CTI is Granted DeFilippo'smotion seeks leave to Amendhis Answerto include five proposedcrossclaims against CTI: (1) breach of contract; (2) "forgery"; (3) common law indemnification; (4) contribution; and (5) defense and indemnification (NYSCEF Doc. 43). Defendant CTI argues in opposition that DeFilippo's motion must be denied as DeFilippo's proposed crossclaims against CTI for breach ofcontract, forgery and defense and indemnification are without merit as a matter oflaw.
a. DeFilippo's Motion for Leave to Assert a First Crossclaim Against CTI for Breach ofContract is Granted It is well established that "[t]o plead breach of contract, the proponent must allege the existence ofa contract, the plaintiffsperformance thereunder, the defendants breach thereof, and resulting damages (Second Source Funding, LLC v Yellowstone Capital, LLC, 144 AD3d 445, 445-446 [1st Dept 2016]). Further, an intended beneficiary ofa contract may maintain a breach of contract action as a third party (Alicea v New York, 145 AD2d 315, 317 [1st Dept 1988]). CTI argues that DeFilippo's motion must be denied because Defilippo fails to attach any ofthe contracts referenced in the proposed crossclaims and fails to state how CTI breached any contracts (NYSCEF Doc. 45 at

# ir 30). However, on a motion for leave to amend a pleading the movant is "not required to support its allegations with evidence or an affidavit of merit" (St. Nicholas W 126

### L.P. v Republic Inv. Co., LLC, 193 AD3d 488, 488-489 [1st Dept 2021]). Here, DeFilippo'sproposedcrossclaimallegesthat CTI andRidgewerepartiesto abinding contract to which Defilippo was a third-party beneficiary (the "CTI Contract") (NYSCEF Doc. 92), and that CTI's breach ofthis contract resulted in Defilippo suffering damages of at least $17,248,650.50 (NYSCEF Doc. 43 at 6-7). In light ofthe foregoing and in consideration ofthe

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### presumption ofvalidity in favor ofthe moving party, the Court finds that DeFilippo's proposed crossclaim for breach ofcontract against CTI is not obviously insufficient as a matter oflaw. As such, DeFilippo's motion for leave to amend his pleading to assert a crossclaim for breach of contract against CTI is granted. b. DeFilippo's Motion for Leave to Assert a Second Crossclaim Against CTI for "Forgery" is Granted The First Departmenthas held that aproponent ofa cause ofaction for forgery successfully states a claim, with requisite specificity, where they allege that their signature was forged on specific documents withouttheir knowledge (Serao v Bench-Serao, 

### 149 AD3d 645, 646 [1st Dept 2017]).Here, DeFilippo's second proposed crossclaim alleges that CTI forged his signature without his knowledge on letters dated May 24, 2022 and August 9, 2022 (NYSCEF Doc. 43 

## 11 20-31). Accordingly, the Court finds that DeFilippo's second proposed crossclaim against CTI for forgery is not obviously insufficient as a matter oflaw. In light ofthe foregoing, DeFilippo's motion for leave to amend his pleadings to assert a crossclaim against CTI for forgery is granted.
c. DeFilippo's Motion for Leave to Assert a Crossclaim Against CTI for Defense and Indemnification is Granted DeFilippo's proposed crossclaims include a fifth crossclaim against CTI and Ridge for "defense and indemnification" (NYSCEF Doc. 43 at 8). CTI argues that DeFilippo's crossclaim for defense andindemnificationis meritlessbecause CTI is notaninsurerthatcouldoweDeFilippo defense and indemnification under an insurance policy (NYSCEF Doc. 45 at 

## 156). However, to the extentthatDeFilippo'sfifth proposed crossclaimis simply one for contractual indemnification, CTI asserts no opposition (NYSCEF Doc. 45 at

## 157).

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### Here, given the lenient standard on a motion to amend an answer and the presumption of validity in favor of the moving party, the Court finds that CTI has failed to demonstrate that Defilippo's proposed crossclaim for Defense and Indemnification is clearly without merit as a matter oflaw. As such, Defilippo's motion for leave to amend its answer to assert a crossclaim against CTI for defense and indemnification is granted. Accordingly, it is hereby, ORDERED that Defendant Vincent Defilippo, Trustee ofthe Desert Rose Trust's motion for an Order granting Defilippo leave to amend his Answer herein is granted, and Defilippo's proposed crossclaims inthe form annexed as ExhibitA (NYSCEfDoc. 43) shall be deemed served upon service ofa copy ofthis Decision and Order with notice ofentry thereof; and it is further ORDERED that within ten (10) days ofentry, counsel for Movants shall serve a copy of this Decision and Order, with notice ofentry, on all parties to this action; and it is further ORDERED that Defendant CTI Construction Inc. and Third-Party Defendant Ridge Contracting Corp. may serve amended Answers within 20 days after service of a copy ofthis Decision and Order, with notice ofentry; and it is further ORDERED that on or before July 9, 2024, the parties shall submit a proposed Status Conference Orderviae-mailto SfC-Part33-Clerk@nycourts.gov. If

### theparties are unableto agree to a proposed Status Conference Order, the parties are directed to appear for an in-person status conference on July 10, 2024 at 9:30 a.m. in Room 442, 60 Centre Street, New York, New York; and it is further
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ORDERED that the Clerk ofthe Court is directed to enterjudgment accordingly. This constitutes the Decision and Order ofthe Court.

5/31/2024

DATE CHECK ONE : APPLICATION : CHECK IF APPROPRIATE: 

# § CASE DISPOSED ::;;L:E:RDER

# □ DENIED INCLUDES TRANSFER/REASSIGN 

# fh-~ V

## ~ (..v J

## ~c HON. M l Rv v. ROSADO, J.s.c. NON-FINAL DISPOSITION GRANTED IN PART SUBMIT ORDER FIDUCIARY APPOINTMENT

### □ OTHE R**□** RE FERENCE

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