Vienna LaLima, as administratrix of the estate of Douglas LaLima, deceased, and Vienna LaLima, individually, appellant,
Consolidated Edison Company of New York, Inc., et al., defendants, Lewis Tree Service, defendant third-party plaintiff; Verizon New York, Inc., respondent. Index No. 5448/12
Richard M. Kenny (Judah Z. Cohen, Woodmere, NY, of counsel),
and Dykman LLP, New York, NY (Kevin M. Walsh and Thomas J.
Abernethy of counsel), for respondent.
REINALDO E. RIVERA, J.P. JOHN M. LEVENTHAL LEONARD B. AUSTIN
JEFFREY A. COHEN, JJ.
DECISION & ORDER
action to recover damages for personal injuries, the
plaintiff appeals, as limited by her brief, from so much of
an order of the Supreme Court, Kings County (Jimenez-Salta,
J.), dated June 1, 2015, as denied those branches of her
motion which were for leave to amend the complaint to add the
third-party defendant, Verizon New York, Inc., as a direct
defendant in the action and to assert causes of action
against it for negligence, Labor Law violations, intentional
spoliation of evidence, impairment of the right to sue,
fraudulent concealment, civil contempt, and wrongful death.
that the order is affirmed insofar as appealed from, with
plaintiff's husband, an employee of the third-party
defendant, Verizon New York, Inc. (hereinafter Verizon), was
killed when, while working from the bucket of an aerial lift
truck, he made contact with a high voltage power line owned
by the defendant Consolidated Edison Company of New York,
Inc. Shortly after the accident, the plaintiff's attorney
advised Verizon of her intent to pursue litigation. In the
context of a pre-action proceeding in aid of discovery, the
parties entered into a stipulation in which Verizon agreed,
inter alia, to secure and preserve the truck.
the plaintiff, as administratrix of her husband's estate,
and individually, commenced this action against Consolidated
Edison Company of New York, Inc., Lewis Tree Service, and the
City of New York. Lewis Tree Service commenced a third-party
action against Verizon. After Verizon notified the plaintiff
that the truck had been vandalized while stored on its lot,
the plaintiff retained an expert for the purpose of
inspecting the truck. The expert reported that, amongst some
other minor damage to the truck, a dead-man's switch
which controlled the operation of the aerial lift bucket had
been removed. The plaintiff then moved, inter alia, for leave
to amend the complaint to add Verizon as a direct defendant
in the action, and to assert causes of action against it for
negligence, Labor Law violations, intentional spoliation of
evidence, impairment of the right to sue, fraudulent
concealment, civil contempt, and wrongful death, arguing
that, even though Verizon was the decedent's employer,
Verizon's spoliation in failing to properly preserve the
truck in the same condition as it was at the time of the
accident was so prejudicial that she should be permitted to
pursue these claims against Verizon directly. The Supreme
Court denied those branches of her motion.
the absence of prejudice or surprise to the opposing party,
leave to amend a pleading should be freely granted unless the
proposed amendment is palpably insufficient or patently
devoid of merit" (G.K. Alan Assoc., Inc. v
Lazzari, 44 A.D.3d 95, 99, affd 10 N.Y.3d 941;
see Pellerito v Pellerito, 148 A.D.3d 1040;
Lucido v Mancuso, 49 A.D.3d 220, 222). The subject
branches of the plaintiff's motion were properly denied
because the proposed amendments were patently devoid of
Compensation benefits are the exclusive remedy of an employee
against his or her employer for injuries or death which occur
in the course of employment (see Workers'
Compensation Law § 11; Weiner v City of New
York, 19 N.Y.3d 852, 854; Reich v Manhattan Boiler
& Equip. Corp., 91 N.Y.2d 772, 779). As such, to the
extent that the proposed amended complaint purports to assert
causes of action against Verizon for negligence, Labor Law
violations, and wrongful death, those causes of action are
barred by the Workers' Compensation Law (see
Workers Compensation Law § 11; De Los Santos v
Butkovich, 126 A.D.3d 845, 846).
the proposed causes of action alleging spoliation and
impairment of the right to sue are devoid of merit because
New York does not recognize spoliation of evidence as an
independent tort (see Ortega v City of New York, 9
N.Y.3d 69, 83), and the impairment of the right to sue claim
is a mere restatement of the spoliation claim with a
proposed fraudulent concealment cause of action is devoid of
merit because the general allegation that Verizon did not
intend to honor its obligation to preserve the truck alleges
a mere misrepresentation of the intention to perform its
obligation under the stipulation, which is insufficient to
allege fraud (see Selinger Enters., Inc. v Cassuto,
50 A.D.3d 766, 768).
plaintiff's remaining contention is without merit.
RIVERA, J.P., LEVENTHAL, AUSTIN ...