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FISKE v. CHURCH OF ST. MARY OF THE ANGELS

April 23, 1992

JEROME E. FISKE, Plaintiff,
v.
CHURCH OF ST. MARY OF THE ANGELS, and THE L.C. WHITFORD COMPANY, INC., Defendants. CHURCH OF ST. MARY OF THE ANGELS, and THE L.C. WHITFORD COMPANY, INC., Third Party Plaintiffs, v. FISKE COMPANY II, INC., Third Party Defendant.



The opinion of the court was delivered by: LESLIE G. FOSCHIO

DECISION and ORDER

 JURISDICTION

 The parties filed a consent to proceed before the undersigned on November 4, 1991. This matter is presently before the court pursuant to Defendant L.C. Whitford Company's ("Whitford") motions to amend its answer pursuant to Fed.R.Civ.P. 15(a), for summary judgment dismissing the complaint against Whitford pursuant to Fed.R.Civ.P. 12(b) and 56(b), and for summary judgment against Defendant Fiske Company II ("Fiske II") for indemnification pursuant to Fed.R.Civ.P. 56(a). The matter is also before the court pursuant to Fiske II's motion to amend its answer pursuant to Fed.R.Civ.P. 15(a).

 BACKGROUND

 This diversity action, arising out of a construction accident which occurred on February 27, 1989, was filed by Plaintiff, a Pennsylvania resident, on April 6, 1990, asserting causes of action against Defendants Church of St. Mary of the Angels ("St. Mary's"), a New York religious corporation, and Whitford, a New York corporation, for violations of the New York State Labor Law, federal labor law, and negligence. On August 7, 1990, St. Mary's filed a cross-claim against Whitford for contribution and indemnification. On August 22, 1990, St. Mary's filed a third-party complaint against Fiske II, a Pennsylvania corporation and Plaintiff's employer, alleging causes of action for contribution and indemnification. On October 12, 1990, Whitford filed a third-party complaint against Fiske II, alleging causes of action for contribution, common law indemnification and contractual indemnification.

 After extensive discovery, Whitford, on December 20, 1991, filed a motion to amend its answer pursuant to Fed.R.Civ.P. 15(a) in order to allege that Pennsylvania law applied to Plaintiff's claim, along with a motion for summary judgment pursuant to Fed.R.Civ.P. 56(b), seeking dismissal of the complaint as against Whitford on the ground that, under Pennsylvania law, Whitford was a statutory employer and, as such, was immune from a lawsuit resulting from an employment accident. On the same day, Whitford also filed a motion for summary judgment pursuant to Fed.R.Civ.P. 56(a) against Fiske II on the ground that the construction contract between Whitford, as general contractor, and Fiske II, as subcontractor, provided that Fiske II was required to indemnify Whitford for any claims arising out of the negligence of Fiske II during its performance under the contract.

 On January 21, 1992, Fiske II filed a motion to amend its complaint pursuant to Fed.R.Civ.P. 15(a) for the purpose of alleging that Pennsylvania law applied to this action.

 On January 31, 1992, oral argument on the above motions was heard from counsel relative to the matter. Other motions for summary judgment filed by Plaintiff and St. Mary's were deferred pending the outcome of the above mentioned motions.

 FACTS

 Plaintiff, Jerome Fiske, a Pennsylvania resident now 25 years of age, was employed by Fiske II, a Pennsylvania corporation located in Erie, Pennsylvania, at the time of the accident which is the subject of this action. *fn1" Fiske II, a construction company, is a related company of Fiske Company, Inc., another Pennsylvania corporation established in 1963. See, Exhibit N, Plaintiff's Memorandum of Law, dated January 17, 1992. Fiske II was specifically incorporated for the purpose of handling Fiske Company's construction contracts in New York State and, in fact, designated a New York attorney to act as its agent in New York to receive service of process. See, Exhibit N, Plaintiff's Memorandum of Law, dated January 17, 1992.

 On September 23, 1988, Whitford, a New York corporation, entered into, as general contractor, a contract for the rehabilitation of St. Mary's Church in Olean, New York. St. Mary's is a religious corporation organized under the laws of New York. Whitford executed a standard construction contract with St. Mary's which included a provision for indemnification to St. Mary's by Whitford in case of any claim brought against St. Mary's which was caused in whole or in part by the negligence of Whitford or any subcontractor or person hired by Whitford to work on the St. Mary's project. See, Exhibit B, Plaintiff's Memorandum of Law, dated January 17, 1992, General Construction Contract, P 6.3. Whitford was given the responsibility for hiring any necessary subcontractors required to complete its contract with St. Mary's. See, Exhibit B, Affidavit of Thomas W. Bender, dated January 17, 1992.

 The original renovation plans of St. Mary's were modified prior to the start of construction in order to lower the cost of the project. See, Exhibit B, Affidavit of Thomas W. Bender, dated January 17, 1992, at p. 62. As a result, Whitford made appropriate modifications to the construction plan, including the use of less scaffolding than was originally called for. See, Exhibit B, Affidavit of Thomas W. Bender, dated January 17, 1992, at p. 38.

 On October 20, 1988, Fiske II was hired as a subcontractor by Whitford to perform various renovations and repairs on the exterior roof and steeple areas of St. Mary's Church. The contract between Fiske II and Whitford required Whitford to provide pipe scaffolding, a cross-walk, and the use of a crane to hoist stone to the roof. See, Exhibit D, Plaintiff's Memorandum of Law, dated January 17, 1992, General Construction Contract, P 14.1. Fiske II was to provide any other necessary equipment, including additional scaffolding. See, Exhibit B, Affidavit of Thomas W. Bender, dated January 17, 1992, at p. 54. The contract also provided that Fiske II would indemnify Whitford for any claims arising in whole or in part from negligence on the part of Fiske II. See, Exhibit D, Plaintiff's Memorandum of Law, dated January 17, 1992, General Construction Contract, P 4.6.1.

 Fiske II began working at the St. Mary's job site in November, 1988. See, Exhibit E, Plaintiff's Memorandum of Law, dated January 17, 1992. On February 27, 1989, Plaintiff, a steeplejack, was working at the job site at St. Mary's. Plaintiff was on the roof near the steeple area of the church when he apparently lost his footing and fell approximately sixty-five feet to the ground below, sustaining serious physical injuries. At the time of the fall, Plaintiff was not wearing safety equipment.

 DISCUSSION

 I. Amendment of the Answers of Defendants Whitford and Fiske II.

 It is well settled that leave to amend a pleading, pursuant to Fed.R.Civ.P. 15, shall be freely given when justice so requires. Conley v. Gibson, 355 U.S. 41, 47-48, 2 L. Ed. 2d 80, 78 S. Ct. 99 n.9 (1957); Ragin v. Harry Macklowe Real Estate Co., 126 F.R.D. 475, 478 (S.D.N.Y. 1989). Leave to amend a pleading shall be granted in the court's discretion, absent a showing of undue delay, bad faith, or undue prejudice to the opposing party. Tokio Marine & Fire Insurance Co. v. Employers Insurance of Wausau, 786 F.2d 101, 103 (2d Cir. 1986). Even where there is no delay, bad faith, or prejudice, leave to amend a pleading should be denied where the claim sought to be added is without merit or futile. Love v. New York State Department of Environmental Conservation, 529 F. Supp. 832, 845 (S.D.N.Y. 1981).

 As long as the amendment of the answer does not prejudice a plaintiff, a defendant will not be precluded from asserting additional defenses about which they previously had knowledge. Hanlin v. Mitchelson, 794 F.2d 834, 841 (2d Cir. 1986); Ragin, supra, at 478. A motion to amend an answer to raise additional affirmative defenses may be granted to the extent that the proposed affirmative defenses raise colorable grounds for relief. S.S.Silberblatt, Inc. v. East Harlem Pilot Block-Building 1 Housing Development Fund Co., 608 F.2d 28, 42 (2d Cir. 1979). In deciding whether a moving party has a colorable ground for relief sufficient to permit the amendment of the answer, the court must make a determination comparable to that required by Fed.R.Civ.P. 12(b)(6) as to whether the proposed amendment states a cognizable defense. Silberblatt, supra; CBS, Inc. v. Ahern, 108 F.R.D. 14 (S.D.N.Y. 1985). Where a proposed amendment to add an affirmative defense raises a colorable ground for relief, the amendment should be permitted, absent prejudice to the plaintiff. Ragin, supra, at 478-479.

 In this case, both Whitford and Fiske II seek to amend their answers to add the affirmative defense that Pennsylvania law applies to the instant action. The court may grant such a motion, in its discretion, if it determines that the addition of such an affirmative defense raises a colorable ground for relief and is not without merit.

 Plaintiff argues that as he is suing two New York State corporations, St. Mary's and Whitford, in New York, and as the accident occurred in New York on a New York construction site, New York law should apply. Whitford and Fiske II argue that Pennsylvania law should apply as Plaintiff is a Pennsylvania resident, Plaintiff's employer, Fiske II, is a Pennsylvania corporation, and Plaintiff is covered by worker's ...


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