Cashabamba v. De Filippo

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.

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SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. MARY V. ROSADO PART 33M Justice --------------------- - - - - - --------X INDEX NO. 156045/2022 ERIKA CASHABAMBA, MOTION DATE 12/07/2023 Plaintiff, MOTION SEQ. NO. 003 -v- VINCENT DE FILIPPO, TRUSTEE OF THE DESERT ROSE DECISION + ORDER ON TRUST, CTI CONSTRUCTION INC., MOTION Defendant. -----------------------------------------------------------X

CTI CONSTRUCTION INC. Third-Party Index No. 595130/2023 Third-Party Plaintiff,

-against-

RIDGE CONTRACTING CORP.

Third-Party Defendant. --------------------------------------------------------------------------------X

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, Defendant Vincent Defilippo, Trustee of the Desert Rose

Trust's ("Defilippo") motion for an Order granting Defilippo leave to amend his Answer to assert

crossclaims for breach of contract, 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 Defilippo to recover for personal injuries sustained by Plaintiff

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when she fell from an elevated work surface at 163 West 76 th 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 of Plaintiffs accident (NYSCEF Doc. 1). In the Bill of Particulars Plaintiff alleges that Third-

party Defendant Ridge Contracting employed Plaintiff on the date of her accident (NYSCEF Doc.

47 at 112).

On October 12, 2022 Defendant Defilippo filed an Answer denying Plaintiffs allegations

(NYSCEF Doc. 16). Subsequently, on November 15, 2022 Defendant CTI filed a Verified Answer

denying Plaintiffs allegations against it and asserting crossclaims against Defilippo for

contribution, common law indemnification, contractual indemnification and breach of contract for

failure to procure insurance (NYSCEF Doc. 18)

On February 14, 2023 Defendant CTI impleaded Third-party Defendant Ridge asserting

causes of action for contractual indemnification, common law indemnification, breach of contract

for failure to procure insurance, and breach of contract 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 of contract, 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

Answer to 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 of law (NYSCEF Doc. 45).

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II. Discussion

It is well settled that leave to amend pleadings is freely granted in the absence of prejudice

if the proposed amendment is not palpably insufficient as a matter oflaw (Mashinksy v Drescher,

188 AD3d 465 [1st Dept 2020]). Further, the First Department has held that, on a motion for leave

to amend a pleading "the proponent must allege legally sufficient facts to establish a prima facie

cause of action 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 [1st Dept 1989]). A party opposing a motion

to amend must demonstrate that it would be substantially prejudiced by the amendment, or 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]). However, "[t]he merit of a proposed

amended pleading must be sustained ... unless the alleged insufficiency or lack of merit is clear and

free from doubt" (Daniels at 371). Therefore, the party opposing the motion to amend "must

overcome a presumption of validity in favor of the 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 support the proposed amendment to the pleadings, those

facts need not be proven at this stage (Id.).

1. DeFilippo's Motion for Leave to Amend his Answer to Assert Crossclaims Against Third-Party Defendant Ridge is Granted

Here, there is no opposition to the portion of DeFilippo'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 of DeFilippo's motion seeking leave to amend

his Answer to assert crossclaims against Third-Party Defendant Ridge is granted.

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11. DeFilippo's Motion for Leave to Amend his Answer to Assert Crossclaims Against Defendant CTI is Granted

DeFilippo's motion seeks leave to Amend his Answer to include five proposed crossclaims

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 of contract, forgery and defense and indemnification are without merit as a matter

of law.

a. DeFilippo's Motion for Leave to Assert a First Crossclaim Against CTI for Breach of Contract is Granted

It is well established that "[t]o plead breach of contract, the proponent must allege the

existence of a contract, the plaintiffs performance 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 of a 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

of the 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's proposed crossclaim alleges that CTI and Ridge were parties to a binding

contract to which Defilippo was a third-party beneficiary (the "CTI Contract") (NYSCEF Doc.

92), and that CTI's breach of this contract resulted in Defilippo suffering damages of at least

$17,248,650.50 (NYSCEF Doc. 43 at 6-7). In light of the foregoing and in consideration of the

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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 of law. 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 of the Desert Rose Trust's motion

for an Order granting Defilippo leave to amend his Answer herein is granted, and Defilippo's

proposed crossclaims in the form annexed as Exhibit A (NYSCEf Doc. 43) shall be deemed served

upon service of a copy of this Decision and Order with notice of entry thereof; and it is further

ORDERED that within ten (10) days of entry, counsel for Movants shall serve a copy of

this Decision and Order, with notice of entry, 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 of this

Decision and Order, with notice of entry; and it is further

ORDERED that on or before July 9, 2024, the parties shall submit a proposed Status

Conference Order via e-mail to SfC-Part33-Clerk@nycourts.gov. If the parties are unable to 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 of the Court is directed to enter judgment accordingly.

This constitutes the Decision and Order of the Court.

5/31/2024 fh-~ V ~ (. .v J ~ c DATE HON. Ml Rv v. ROSADO, J.s.c.

§ CHECK ONE: CASE DISPOSED NON-FINAL DISPOSITION

□ OTHER APPLICATION : ::;;L:E:RDER □ DENIED GRANTED IN PART

SUBMIT ORDER

CHECK IF APPROPRIATE: INCLUD ES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT □ RE FEREN CE

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Footnotes

[4] of 7 [* 4] presumption of validity in favor of the moving party, the Court finds that DeFilippo' s proposed crossclaim for breach of contract against CTI is not obviously insufficient as a matter of law. 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 Department has held that a proponent of a cause of action for forgery successfully states a claim, with requisite specificity, where they allege that their signature was forged on specific documents without their 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 of law. In light of the 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 and indemnification is meritless because CTI is not an insurer that could owe DeFilippo defense and indemnification under an insurance policy (NYSCEF Doc. 45 at 1 56). However, to the extent that DeFilippo' s fifth proposed crossclaim is simply one for contractual indemnification, CTI asserts no opposition (NYSCEF Doc. 45 at 1 57). 156045/2022 CASHABAMBA, ERIKA vs. VINCENT DE FILIPPO, TRUSTEE OF THE DESERT Page 5 of 7 ROSE TRUST ET AL Motion No. 003 [* 5] 5 of 7