Balbuena v 395 Hudson N.Y., LLC

2024 NY Slip Op 31037(U)

March 29, 2024

Supreme Court, New York County

Docket Number: Index No. 151031/2014

Judge: David B. Cohen

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.
151031/2014 BALBUENA, CELSA vs. 395 HUDSON NEW YORK, LLC

Motion No. 009

Page 1 of 5

The following e-filed documents, listed by NYSCEF document number (Motion 009) 401, 402, 403, 404, 

405, 406, 407, 408, 409, 410, 411, 412, 413, 414, 415, 416, 417, 418, 419, 420, 421, 422, 423, 424, 425, 

426, 427, 428, 429, 430, 431, 432, 433, 434, 435, 436, 437, 438, 439, 440, 441, 442, 443, 444, 445, 446, 

447, 448, 449, 450, 451, 452, 453, 454, 455, 456, 457, 458, 459, 460, 461, 462, 463, 464, 465, 466, 467, 

468, 469, 470

were read on this motion to/for AMEND CAPTION/PLEADINGS .

In this Labor Law action, defendant 395 Hudson New York, LLC (395 Hudson) moves, 

pursuant to CPLR 3025(b) and 3212, for leave to amend its pleadings and, subsequently, for 

summary judgment on its cross-claims against defendant MBI Group and its claims against thirdparty defendant Collins Building Services, Inc. (Collins).

I. Factual and Procedural Background

Plaintiff commenced this action in February 2014 after she allegedly tripped over 

improperly secured tiles in a building owned by 395 Hudson (NYSCEF Doc No. 403). Shortly 

thereafter, MBI Group and 395 Hudson joined issue with their answers dated March 12, 2014, and 

March 20, 2014, respectively (Doc Nos. 404-405). In their answers, 395 Hudson and MBI Group 

asserted various affirmative defenses as well as cross-claims against each other for, among other 

things, indemnification. In April 2016, 395 Hudson commenced a third-party action against 

Collins, asserting claims of, among other things, common-law and contractual indemnification

SUPREME COURT OF THE STATE OF NEW YORK

NEW YORK COUNTY

PRESENT: HON. DAVID B. COHEN PART 58

Justice

---------------------------------------------------------------------------------X INDEX NO. 151031/2014

 MOTION SEQ. NO. 009

DECISION + ORDER ON 

MOTION

CELSA BALBUENA,

 Plaintiff, 

- v -

395 HUDSON NEW YORK, LLC and MBI GROUP,

 Defendants. 

---------------------------------------------------------------------------------X

INDEX NO. 151031/2014

NYSCEF DOC. NO. 472 RECEIVED NYSCEF: 03/29/2024

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151031/2014 BALBUENA, CELSA vs. 395 HUDSON NEW YORK, LLC

Motion No. 009

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(Doc No. 408). Following joinder of issue in the third-party action (Doc No. 409) and the 

completion of discovery, a note of issue was filed in February 2019 (Doc No. 88).

395 Hudson now moves to amend its pleadings to include new factual references to an 

“Assignment and Assumption Agreement”1and, subsequently, for summary judgment on its crossclaims against MBI Group and its third-party claims against Collins (Doc No. 401), which MBI 

Group and Collins oppose, respectively (Doc Nos. 432 and 460). Collins also cross-moves for 

summary dismissal of the third-party complaint (Doc No. 341), which 395 Hudson opposes (Doc 

No. 466).

II. Legal Analysis and Conclusions

A. 395 Hudson’s Motion for Leave to Amend

As 395 Hudson’s request for leave to amend its pleadings is unopposed, that branch of 395 

Hudson’s motion is granted.2

B. 395 Hudson’s Motion for Summary Judgment

“A motion for summary judgment may not be made before issue is joined and th[at] 

requirement is strictly adhered to” (City of Rochester v Chiarella, 65 NY2d 92, 101 [1985]

[citations omitted]; see SHG Resources, LLC v SYTR Real Estate Holdings LLC, 201 AD3d 610, 

611 [1st Dept 2022]). Since 395 Hudson was granted leave to amend its pleadings, issue is no 

longer joined with respect to its cross-claims against MBI Group and its third-party claims against 

Collins. Therefore, the branch of 395 Hudson’s motion seeking summary judgment on those 

1

 In its motion papers, 395 Hudson only submitted a proposed amended third-party complaint including 

these new factual references (Doc No. 427), but it also appears that 395 Hudson intended to amend its cross-claims 

against MBI Group to include the same new factual references, it just failed to submit a proposed amended answer

with cross-claims. 395 Hudson’s prior amended answer included no references to any Assignment and Assumption 

Agreement (Doc No. 407).

2

 Although Collins addressed 395 Hudson’s request for leave to amend its pleadings in its opposition 

papers, Collins explicitly took no position on whether such request should be granted (Doc No. 432 at 32-33).

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Motion No. 009

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claims is premature (see Valentine Tr. v Kernizan, 191 AD2d 159, 160-161 [1st Dept 1993] 

[denying summary judgment motion as premature when motion made at same time as motion for 

leave to amend, which was granted]).

Although there have been instances where a court exercised its discretion to simultaneously 

grant a party leave to amend its pleadings while deciding a summary judgment motion without 

responses to such amended pleadings, in those instances the amended pleadings “merely corrected 

a technical defect” in the identification of the complaint’s causes of action and “added no material 

substantive factual allegations” (Stephanie R. Cooper, P.C. v Robert, 78 AD3d 572, 573 [1st Dept 

2010] [finding motion court properly exercised discretion in granting leave to amend while also

“dispens[ing] with an answer to the amended complaint prior to addressing plaintiff’s summary 

judgment contentions”]).

Here, 395 Hudson’s amended pleadings explicitly include new factual references to the 

Assignment and Assumption Agreement, which are central to its contentions regarding summary 

judgment against MBI Group and Collins. Thus, it is improper to dispense with amended answers 

and address issues regarding summary judgment (see R&G Brenner Income Tax Consultants v 

Gilmartin, 166 AD3d 685, 688 [2d Dept 2018] [finding motion court improperly awarded 

summary judgment on causes of action in amended complaint, after simultaneously granting leave 

to amend, because defendant had not answered amended complaint]; cf. Stephanie R. Cooper, 

P.C., 78 AD3d at 573).

C. Collins’ Cross-Motion for Summary Dismissal

Collins’ motion for summary judgment dismissing the third-party complaint must also be 

denied as premature, for the same reasons 395 Hudson’s motion for summary judgment was 

deemed premature.

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151031/2014 BALBUENA, CELSA vs. 395 HUDSON NEW YORK, LLC

Motion No. 009

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Accordingly, it is hereby:

ORDERED that the motion by defendant 395 Hudson New York, LLC is decided as 

follows:

• the branch of the motion seeking leave to amend its pleadings is granted; and

• the branch of the motion seeking summary judgment on its cross-claims against

defendant MBI Group and third-party claims against third-party defendant Collins

Building Services, Inc. is denied as premature; and it is further

ORDERED that the cross-motion by third-party defendant Collins Building Services, Inc. 

for summary judgment dismissing the third-party complaint is denied as premature; and it is further

ORDERED that the amended third-party complaint filed on NYSCEF by defendant 395-

Hudson New York, LLC as NYSCEF Doc No. 427 shall be deemed served upon service of a copy 

of this order with notice of entry upon third-party defendant Collins Building Services, Inc.; and 

it is further

ORDERED that defendant 395 Hudson New York, LLC is directed to file an amended 

answer with cross-claims on NYSCEF within 10 days of entry of this order; and it is further

ORDERED that the amended answer with cross-claims, once filed, shall be deemed served 

upon service of a copy of this order with notice of entry upon defendant MBI Group; and it is 

further 

ORDERED that counsel for defendant 395 Hudson New York, LLC shall serve a copy of 

this order with notice of entry upon the Clerk of the Court (60 Centre Street, Room 141B) and 

the Clerk of the General Clerk’s Office (60 Centre Street, Room 119); and it is further

ORDERED that such service upon the Clerk of the Court and the Clerk of the General 

Clerk’s Office shall be made in accordance with the procedures set forth in the Protocol on 

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Courthouse and County Clerk Procedures for Electronically Filed Case (accessible at the “EFiling” page on the court’s website at the address www.nycourts.gov/supctmanh).

3/29/2024

DATE DAVID B. COHEN, J.S.C.

CHECK ONE: CASE DISPOSED X NON-FINAL DISPOSITION

GRANTED DENIED X GRANTED IN PART OTHER

APPLICATION: SETTLE ORDER SUBMIT ORDER

CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE

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