Scarbough v. Gonzalez

Scarbough v Gonzalez (2020 NY Slip Op 05546)

Scarbough v Gonzalez

2020 NY Slip Op 05546

Decided on October 7, 2020

Appellate Division, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on October 7, 2020 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
JOHN M. LEVENTHAL, J.P.
SHERI S. ROMAN
JEFFREY A. COHEN
JOSEPH J. MALTESE, JJ.
2019-00557
(Index No. 500066/18)

James E. Johnson, Corporation Counsel, New York, NY (Fay Ng, Jeremy W. Shweder, and Devin Slack of counsel), for appellants.

Silberstein Awad & Miklos, P.C., Garden City, NY (Robert Miklos of counsel), for respondents.

DECISION & ORDER

In an action, inter alia, to recover damages for personal injuries, etc., the defendants Raymond Gonzalez, Dukens Jean Baptiste, and City of New York appeal from an order of the Supreme Court, Kings County (Katherine A. Levine, J.), entered November 30, 2018. The order denied their motion pursuant to CPLR 3211(a)(7) to dismiss the complaint insofar as asserted against them, with leave to renew upon the completion of discovery, and granted the plaintiffs' cross motion pursuant to CPLR 3025(b) for leave to amend the complaint.

ORDERED that the order is affirmed, with costs.

The plaintiffs commenced this action, inter alia, to recover damages for personal injuries. The defendants Raymond Gonzalez, Dukens Jean Baptiste, and City of New York (hereinafter collectively the defendants) moved pursuant to CPLR 3211(a)(7) to dismiss the complaint insofar as asserted against them. The plaintiffs cross-moved pursuant to CPLR 3025(b) for leave to amend the complaint. In an order entered November 30, 2018, the Supreme Court denied the defendants' motion, with leave to renew upon the completion of discovery, and granted the plaintiffs' cross motion. The defendants appeal.

We agree with the Supreme Court's determination to deny the defendants' motion pursuant to CPLR 3211(a)(7) to dismiss the complaint insofar as asserted against them since it appears that facts essential to the opposition of the motion may be in the defendants' possession (see CPLR 3211[d]; Giunta's Meat Farms, Inc. v Pina Constr. Corp., 89 AD3d 799, 800).

Additionally, under the circumstances, we agree with the Supreme Court's exercise of its discretion in granting the plaintiffs' cross motion pursuant to CPLR 3025(b) for leave to amend the complaint (see Lucido v Mancuso, 49 AD3d 220).

LEVENTHAL, J.P., ROMAN, COHEN and MALTESE, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court