Cerros v New York City Tr. Auth.

2024 NY Slip Op 30319(U)

January 29, 2024

Supreme Court, New York County

Docket Number: Index No. 153784/2021

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.
FILED: NEW YORK COUNTY CLERK 01/29/2024 05:01 PM INDEX NO. 153784/2021

NYSCEF DOC. NO. 117 RECEIVED NYSCEF: 01/29/2024

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SUPREME COURT OF THE STATE OF NEW YORK 

!N'EW YORK COUNTY 

PRESENT: 'HON .. MARY V. ROSADO 

Justice 

- ---------- ------------------------ ------------------.. ---X 

MAURICIO CERROS, ENMA CERROS, 

Plaintiff, 

- vNEW YORK CITY TRANSIT AUTHORITY, 

METROPOLITAN TRANSPORTATION AUTHORITY, THE 

CffY OF NEW YORK, TULLY CONSTRUCTION CO. 

INC.,WALSH CONSTRUCTION COMPANY II, 

LlC,FEILDMAN LUMBER-US lBM, LILC, 

Defendant. 

-- ------------------· ---------------------- ----------- -------------X 

NEW YORK cnY TRANSIT AUTHORIT Y, METROPOLITAN 

TRANSPORTATION AUTHORlTY, THE CITY OF NEW YORK 

Plaintiff, 

-against-

'FELDMAN LUMBER-US LBM, LLC 

Defendant. 

H•----- -. ------------ -·--------------------- -~ ----------- -~--• . X 

PART 33M 

INDEX NO. 153784/2021 

MOTION DATE 11/'01 /2 023 

MOTION S!::Q, NO. -'-0~03"------

DECISIONi + ORDER ON 

MOTION 

Third-Party 

I ri dex No. 5 95 079/202 3 

The following e-filed documents, listed by NYSCEF document number (Motion 003) S-5, 86, 87, 88, 891

, 

90, 91 , 92, 93, 94, 95, 96, 97, 98, 99, 00, 101, 02 , 103, 107, 108, 109, 110, 12, 1 3, 114, 11S 

were rea d ori this motion to/for AMEND CAPTIONIPLEADIJNGS 

Upon the: fc.>regoing documents Plaintiffs Mauricio Cerros ("Mauricio';) and Fnma Cerros' 

(''Plaintiffa") motion for an Order granting Plaintiffs' motion for leave to fi le and s,erve a first 

amended complaint is granted. 

I. Ba.ckground and Procedural History 

laiJ1li ff :tv1aurfoio alleges that while •employed b ' \Va.lsh Construction Company 11 , LLC 

(" \Vals.h '), he ,vas performing v,,:ork on the New York City T ·ansit Authority/J\,fotropolitan 

Transportation Authority Flood 1itigation and Resil"ency Projc,ct (the ·'Train Yard ') \vhen, "after 

153784/2021 CERROS, MAURICIO vs. NEW YORK. CITY "l"RANSIIT 

Motion 'No. 003 

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NYSCEF DOC. NO. 117 RECEIVED NYSCEF: 01/29/2024

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removing s raps from a stack o f lumber that was improperly pbced and had not been properly 

seemed the stack of lumber collapsed a.nd fell down onto Plaintiff, causing him serious physical 

injuries" {NYSCEP Doc .. 1 al~ 5). 

Plaintiffs commenced the instant action against Defendants New York City Transit 

Authority ("NYCTA"), Melropolitan Transportation Authority (''MTA'')~ The City of Nt:\ York 

''TCNY' '), Tully Constmction Co. lnc. ('Tully"}, and \Valsh Constmction Company 11, LLC 

(' Walsh") by filing and serving a Summons and Complaint dated April 19, 2021 (NYSCEF Doc. 

88). issue was j oined by the service of an Ans\ver by Defendants YCTA~ MI A and TCNY dated 

Ju 1t: 4, 2021. (NY "'CEF Doc. 99). In lieu of answ,ering, Defendants TuUy and Walsh filed a mo lion 

to djsmiss on June ]5 2021 (NYSCEF Doc. 9). Plairrtjffs' action against TuUy and Walsh ,1>,•as 

later discontinued without prejudice pursuant to a Stipulation of Discontinuance dated September 

20, 2021 (NYSCEF Doc. 90). 

On January 26, 2023, Defendants NYCT · , 1TA and 'IC Y (the 'Third-Party Plaintiffs") 

commenced a third-party action against Feldman Lumber~US L RM, LLC ( 'Feldman") (N YSCEF 

Doc. 3 7). F ~1dman is a lumber yard in tJ1e City or Nc\v York that pr,ovi des materials to various 

individuals and entities throughout the City of Ne,v York and, in this case, prov1ded materials to 

Wal8h at the rain Yard (NYSCEF Doc .. l 07 al I 3 ). 

Subsequently. Plaintiffs commenced a separate action against ·eldman under lndex No. 

I 50588/2023 (the ' Separate Action') by filing and s rving a Stunmon::; and Vcri.fied Complaint 

dated January l 9, 2023 (N -SCEF Doc. 89). Issue vvas j oined by Feld ma 1 in the Separate Action 

by service or an Answer date.cl February 27: 2023 (NYSCEF Doc. 102). hereafter, the Separate 

Action was consolidated into this ac t.ion by Decision and O ·J.er dated June 1, 2023 {NYSCEF Doc. 

73). 

1.53184/202:1, CERROS, MAURICIO vs. NEW YORK CITY lRANSff 

Motion No. 003 

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NYSCEF DOC. NO. 117 RECEIVED NYSCEF: 01/29/2024

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Plaintiffs commenced a th1rd action (the "Third Action") by Sununons and Complaint 

dated October 30, 2023 (Exhibit B to NYSCEF Doc. 98), asserting claims; inter alia, against the 

possible manufacturers and dist1'ibutors of the subject draft oflumber, sounding in strict products 

liability, breach ohvarranty and negligence (NYSCEF · )oc. 86 at ii 15). Plaintiffs intend lo move 

to consolidate the Third Action vviU1 lhc instant action {NYSC F Doc. 86 at ' 3). 

On November 1, 2023; Piaintiffs made the instant motion C 1ot Seq. 3) (N'YSCEF Doc. 

85) fm an Order granting Plain Li ffs leave to file and serve a Firsl Amended Co nplaint (N YSCEF 

Doc. 98) adding claims against Fddman for strict products liability and breach ofwarranly, as well 

as an additional claim of negligence againsl all defendants .. Feldman filed an Affim1ation in 

Op[ osition to Plainti.ffs' motion dated November 22, 2023 ( YSCEF Doc. 107). Plai 1ti ffs filed a 

Reply Affirmation in supp01t or their motion dated January 2, 2024 (NYSC F Doc. 112). 

IT. Di.scH siori 

.l\.. Standard 

Leave to amend pleadings ls fredy granted in the absence or prej udice if the proposed 

amendment is not palpably insuffici ent as a matter of law (lvfashinksy v Drescher, 188 A.D3d 465 

[1st Dept 2020)). A part_.1 opposing a motion to amend must demonstrate that it \Vou ld be 

substantially prejudiced by the amendment, or the amendments are putently devoid of merit 

(Greenburgh Eleven Union Free School Dist. V National Un.ion fire Ins .. Co., 298 AD2d 180, 18 1 

l l st Dept 2002 J) .. Delay alone is not sufficient to deny leave to amend (Johnson v lWontejlore 

A1edical Center, 20~ AD3d 462 [l st D "pt 2022]). 

B. Plaintiffs Failure lo Include an Affidavit of lvforit is not 1 :atal to their Motion 

Preliminarily, Feldman cont•ends that Plaintiffs' motion must be denied because Plaintiff.<; 

have failed to submit an affidavit of merit in support of the application to amer d YSCEF Doc. 

15376412021 CERIROS MAUR11C!IO vs.. NEW YORK CITY TRANSIT Page J of 6 

Motion No. 003 

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NYSCEF DOC. NO. 117 RECEIVED NYSCEF: 01/29/2024

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W7 at 17). Specifically, Fddman cites to Schulty Roth & Zabel v. Ka sover, 28 A.D. 3d 404; 812 

N.Y.S.2d 874 (1 st Dept. 2006) in support of the assertion that iTa]]though the standard for 

amending a plead.ing is less exacti ng than in moving for summary judgment, there still must be an 

Affidavit of Me1i t or an offer of evidence simitar to that supporting a summary judgment motion.·• 

Ilov,.:ever, more recent decisions by the Fist Department have held) conversely, that on a motion 

for leave to amend pleadings, a plaintiff is ··not required to support its all egations \vith evidence 

or an affidavit of merit" (St . . 1Vicholas J·V 126 l,. P. v Republic Inv. Co .. LLC. l 03 A03d 488, 488~ 

489 [} st Dept 202 I J). As such, Plainli ITs' failure to submit an affidavit of merit is. not fatal t > their 

n10tion ror leave to file a first amended complaint. 

C. Plaintiffs) Motion for Le.ave to File a First i\.mended Com taint is Granted 

As stated above, to successfully oppose a motion lo a.mend pleadings a party must 

demonstrate that it would be substantially prejudiced hy the amendment, or that the amendments 

are patently devoid of merit (Greenburgh Eleven Union Free School Dist. V National Union Fire 

Ins. Co .• 298 AD2d 180, 181 [1st Dept 2002]}. 

Feld.man1s opposition fafls to demonstrate or asserl that granting Plaintiffs' motion for 

leave to file a first amended c.ornplaint would be prejudicial to Feldman in any v,.:ay (NYSCEF 

D01,:. l 07). Feldman's primary argument in opposition, with respect to the product Eability c.laim 

included in Plaintiffs' H rst .A.:mended Complaint, is that Plaintiffs have " not s,ct forth a single basis 

in su port of rt11eir] application to amend the mm plaint as then:: has been no testimony tha lherc 

\vas any .issue with the stack of lumber that fell on to the pla 'ntiff other than fallin~ over due to 

vibration from the nearby pile dri ving activities" ( YSCLP Doc. 107 at ii 14). I fo\vever; Plaintiffs' 

claim in th1; First Amended Complaint is i'not that the individual pieces of 3x 1 Ox 16 lumber were 

defcct1ve ," but rather that "'the suhject draft of lumber collectively as manufactu red v,dth all of its 

15J784f2021, CERROS, MAURICIO vs. NEW YORK CITY iRANS'IT 

Motion No. 003 

!Pag:o 4 of 6 

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NYSCEF DOC. NO. 117 RECEIVED NYSCEF: 01/29/2024

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component parts - 1ncluding defective dunnage which was insufficient lo support and stabilize the 

dra ft - ·was defective as manufactured, either in its design and/or manufactme and/or failure to 

warn;1 (NSYCEF Doc_ 98 at ~Iii 90-102). Plaintiffs' Bill of Particulars specifically alleges, inter 

alia that Feldman us•ed improper and defective dunnage, failed to us•e and properly place dunnage, 

allowed an permitted the use and operation of faulty and defective equiprn.ent including the 

dunnage, bands and ::;tack of lumber, and provided inadequately designed dunnage" (NY ,CEF 

Doc. 101 al ~ 7)_ 

ln hgh of the foregoing, the Court finds that Plaintiffs' proposed Fi.rst Amended Complaint 

is not palpably insufficient as a matter of la,:v and \Vilt not result in subslantial prejudice to any 

party. As such, Plaintiffs' motion for leave to file and serve lhe Proposed · · irst Ame1 ded Complaint 

is granted. 

Accordingly, il is he.reby, 

ORDERFD that Plaintiffs Ivfour' cio Cenos and Enma Cerros' mot' on for an Order granting 

Plajntiffs' motion for leave to file and serve a first amended Lomplaint is granted; and it is further 

ORDERED tha.t Plaintiff · notion for leave to amend the complaint herein is granted, and 

the amended complaint in the proposed fonn annexed to the moving papers (NYSCEF Doc .. 98) 

shun he deemed served upon service or a copy of this order with notice of 'ntry thcfeof; and it is 

further 

ORDERED that within 10 days of entry, counsel for Plainliffs shall serve a copy of this 

Decisi.011 and Order; with notice of entry, on all parties lo this action; and it is fmther 

ORDERED that the defendanls shal1 serve an answer to the amended complaint or 

o henvise re ·pond thereto \Vithin 20 days from the date of said service~ and i is further 

1537841.2021 CERIROS, MAURICIO vs. NEW YOIRIK C'ITY TRAINS IT 

Motion No. 003 

Page 5, of 6 

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FILED: NEW YORK COUNTY CLERK 01/29/2024 05:01 PM INDEX NO. 153784/2021

NYSCEF DOC. NO. 117 RECEIVED NYSCEF: 01/29/2024

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ORDERED that on or before January 23, 2024, the parties shaJl submit a proposed Status 

Con erence Order via NYSCEF and e-mail to SFC-Part3 3-Clerk(q,[nvcourts.gov. If the parties are 

unable to agree upon a proposed Status Conference Order, the parties shaU appear for an in-person 

status conference on January 24, 2024 al 9:30 a.m. in 60 Centre St ·eet, Room 442 New York, 

New York· and i is further 

ORDERED that the Clerk of tl1e Court is directed to enter judgment accordingly. 

This constitutes the Decision and Order of the Court. 

1129/2024 

DATE 

CH CKONE: 

APPUCATION; 

CH E:CK IF APPROPRIATE: 

CASc DISPOSED 

GRANITED □ DENIED 

SUTLEORDER 

I N,CLUDES TRANSFE RIREASSIG N 

153 784'2021 CERROS, MAURICIO vs. N E:W YORK CITY T RAN$,IT 

Motiion No, 003 

HON. M RY V. ROSADO, J,S,C. 

NON.:FINAL 0 1-SPOSITION 

GRANTED lN PART 

SUBMIT ORDER 

AOUCIARY APPOI N!TMEiNT 

□ OTIHE:R 

REFERENCE 

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