Preview
FILED: KINGS COUNTY CLERK 04/12/2022 03:49 PM INDEX NO. 512147/2020
NYSCEF DOC. NO. 55 RECEIVED NYSCEF: 04/12/2022
FILE #: 31464
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
----------------------------------------------------------------------X
LUIS ALBERTO HERRERA,
Plaintiff, AFFIRMATION IN
SUPPORT
-against-
INDEX #: 512147/2020
THE CITY OF NEW YORK, BELMONT RE, LLC
AND SUTTER AVENUE REALTY CO. LLC,
Defendants.
----------------------------------------------------------------------X
SUTTER AVENUE REALTY CO. LLC,
Third-Party Plaintiff,
-against-
TRINCHESE IRON WORKS & CONSTRUCTION INC.,
Third-Party Defendant.
--------------------------------------------------------------------------X
BIANCA CACACE, ESQ., duly admitted to practice law in the Courts of the State of New
York, hereby affirms under the penalties of perjury pursuant to CPLR §2106:
1. That I am associated with Subin Associates, LLP, the attorneys for the Plaintiff, LUIS
ALBERTO HERRERA (“Plaintiff”), and, as such, I am familiar with the facts and
circumstances herein, except as to those alleged upon information and belief, and as to
those I verily believe them to be true.
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FILED: KINGS COUNTY CLERK 04/12/2022 03:49 PM INDEX NO. 512147/2020
NYSCEF DOC. NO. 55 RECEIVED NYSCEF: 04/12/2022
2. That I make this affirmation in support of Plaintiff's Motion for an Order: 1) granting
leave for Plaintiff to amend the Summons and Complaint to add a new Defendant; 2)
deeming same served on Answering Defendants; and 3) for such other and further relief
as to this Honorable Court may seem just and proper.
3. That this is an action by Plaintiff to recover for personal injuries sustained by Plaintiff
during a trip and fall as a result of Defendants’ negligence on August 6, 2019.
4. On or about July 12, 2020, Plaintiff initiated this action by filing a Summons and
Complaint. (See, Summons and Complaint, annexed hereto as Exhibit “A”).
5. Defendants joined issue by filing their Verified Answers. (See, Verified Answers,
annexed hereto collectively as Exhibit “B”).
6. On or about November 19, 2020, Defendant/Third-Party Plaintiff, SUTTER
AVENUE REALTY CO., LLC, served a Third-Party Summons and Complaint on
Third-Party Defendant, TRINCHESE IRON WORKS & CONSTRUCTION INC.
(hereinafter “TRINCHESE”). On or about December 23, 2020, Third-Party
Defendant, TRINCHESE served their Verified Answer to the Third-Party Complaint.
(See, Third-Party Complaint and Answer, annexed hereto collectively as Exhibit “C”).
7. On or about April 19, 2021, this Court issued a Case Scheduling Order. (See, Case
Scheduling Order, annexed hereto as Exhibit “D”).
8. On or about February 22, 2022, parties entered into a Proposed Compliance Conference
Order, which was subsequently so ordered by this Court. (See, Compliance Conference
Order, annexed hereto as Exhibit “E”).
9. Through investigation, TRINCHESE, has been identified as an additional responsible
party. At this time, Plaintiff is seeking to amend the Complaint to add said party,
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FILED: KINGS COUNTY CLERK 04/12/2022 03:49 PM INDEX NO. 512147/2020
NYSCEF DOC. NO. 55 RECEIVED NYSCEF: 04/12/2022
TRINCHESE, as a direct named Defendants. So that the caption may read:
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
------------------------------------------------------------------------X
LUIS ALBERTO HERRERA,
Plaintiff,
-against-
THE CITY OF NEW YORK, BELMONT RE, LLC
SUTTER AVENUE REALTY CO. LLC AND
TRINCHESE IRON WORKS & CONSTRUCTION INC.,
Defendants.
------------------------------------------------------------------------X
10. In general, leave to amend a pleading is freely granted in the absence of prejudice, upon
a showing that the proposed amendment has merit. Centrifugal Associates, Inc. v.
Highland Metal Industries, Inc., 597 NYS 2d 49 (lst Dept. May, 1993). Plaintiff’s
counsel learned of the additional responsible party upon further investigation and
review of discovery.
11. A review of the facts and circumstances surrounding this Motion present an adequate
justification to allow the amendment. It is respectfully submitted that the Defendants
cannot show prejudice. Thus, the Defendants would suffer no prejudice by this Court
granting the instant application.
12. Thus, it is requested that the complaint be amended to contain the additional named
Defendant, TRINCHESE. See the Supplemental Summons and Amended Complaint
annexed hereto as Exhibit "F". That the amendment requested herein will result in no
prejudice to the Defendants and, pursuant to the applicable case law, leave to amend a
complaint is freely given.
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FILED: KINGS COUNTY CLERK 04/12/2022 03:49 PM INDEX NO. 512147/2020
NYSCEF DOC. NO. 55 RECEIVED NYSCEF: 04/12/2022
13. This Court should issue an order permitting amendment of the Summons and Complaint
and deeming the Supplemental Summons and Amended Complaint as being served upon
all answering Defendants.
WHEREFORE, it is respectfully requested that Plaintiff’s motion to serve an amended
complaint as herein, should be granted in all respects and for such other and further relief as to this
Court seems just and proper.
Dated: New York, New York
April 12, 2022
Bianca Cacace
________________________
Bianca Cacace, Esq.
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Preview
FILED: KINGS COUNTY CLERK 04/12/2022 03:49 PM INDEX NO. 512147/2020 NYSCEF DOC. NO. 55 RECEIVED NYSCEF: 04/12/2022 FILE #: 31464 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS ----------------------------------------------------------------------X LUIS ALBERTO HERRERA, Plaintiff, AFFIRMATION IN SUPPORT -against- INDEX #: 512147/2020 THE CITY OF NEW YORK, BELMONT RE, LLC AND SUTTER AVENUE REALTY CO. LLC, Defendants. ----------------------------------------------------------------------X SUTTER AVENUE REALTY CO. LLC, Third-Party Plaintiff, -against- TRINCHESE IRON WORKS & CONSTRUCTION INC., Third-Party Defendant. --------------------------------------------------------------------------X BIANCA CACACE, ESQ., duly admitted to practice law in the Courts of the State of New York, hereby affirms under the penalties of perjury pursuant to CPLR §2106: 1. That I am associated with Subin Associates, LLP, the attorneys for the Plaintiff, LUIS ALBERTO HERRERA (“Plaintiff”), and, as such, I am familiar with the facts and circumstances herein, except as to those alleged upon information and belief, and as to those I verily believe them to be true. 1 of 4 FILED: KINGS COUNTY CLERK 04/12/2022 03:49 PM INDEX NO. 512147/2020 NYSCEF DOC. NO. 55 RECEIVED NYSCEF: 04/12/2022 2. That I make this affirmation in support of Plaintiff's Motion for an Order: 1) granting leave for Plaintiff to amend the Summons and Complaint to add a new Defendant; 2) deeming same served on Answering Defendants; and 3) for such other and further relief as to this Honorable Court may seem just and proper. 3. That this is an action by Plaintiff to recover for personal injuries sustained by Plaintiff during a trip and fall as a result of Defendants’ negligence on August 6, 2019. 4. On or about July 12, 2020, Plaintiff initiated this action by filing a Summons and Complaint. (See, Summons and Complaint, annexed hereto as Exhibit “A”). 5. Defendants joined issue by filing their Verified Answers. (See, Verified Answers, annexed hereto collectively as Exhibit “B”). 6. On or about November 19, 2020, Defendant/Third-Party Plaintiff, SUTTER AVENUE REALTY CO., LLC, served a Third-Party Summons and Complaint on Third-Party Defendant, TRINCHESE IRON WORKS & CONSTRUCTION INC. (hereinafter “TRINCHESE”). On or about December 23, 2020, Third-Party Defendant, TRINCHESE served their Verified Answer to the Third-Party Complaint. (See, Third-Party Complaint and Answer, annexed hereto collectively as Exhibit “C”). 7. On or about April 19, 2021, this Court issued a Case Scheduling Order. (See, Case Scheduling Order, annexed hereto as Exhibit “D”). 8. On or about February 22, 2022, parties entered into a Proposed Compliance Conference Order, which was subsequently so ordered by this Court. (See, Compliance Conference Order, annexed hereto as Exhibit “E”). 9. Through investigation, TRINCHESE, has been identified as an additional responsible party. At this time, Plaintiff is seeking to amend the Complaint to add said party, 2 of 4 FILED: KINGS COUNTY CLERK 04/12/2022 03:49 PM INDEX NO. 512147/2020 NYSCEF DOC. NO. 55 RECEIVED NYSCEF: 04/12/2022 TRINCHESE, as a direct named Defendants. So that the caption may read: SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS ------------------------------------------------------------------------X LUIS ALBERTO HERRERA, Plaintiff, -against- THE CITY OF NEW YORK, BELMONT RE, LLC SUTTER AVENUE REALTY CO. LLC AND TRINCHESE IRON WORKS & CONSTRUCTION INC., Defendants. ------------------------------------------------------------------------X 10. In general, leave to amend a pleading is freely granted in the absence of prejudice, upon a showing that the proposed amendment has merit. Centrifugal Associates, Inc. v. Highland Metal Industries, Inc., 597 NYS 2d 49 (lst Dept. May, 1993). Plaintiff’s counsel learned of the additional responsible party upon further investigation and review of discovery. 11. A review of the facts and circumstances surrounding this Motion present an adequate justification to allow the amendment. It is respectfully submitted that the Defendants cannot show prejudice. Thus, the Defendants would suffer no prejudice by this Court granting the instant application. 12. Thus, it is requested that the complaint be amended to contain the additional named Defendant, TRINCHESE. See the Supplemental Summons and Amended Complaint annexed hereto as Exhibit "F". That the amendment requested herein will result in no prejudice to the Defendants and, pursuant to the applicable case law, leave to amend a complaint is freely given. 3 of 4 FILED: KINGS COUNTY CLERK 04/12/2022 03:49 PM INDEX NO. 512147/2020 NYSCEF DOC. NO. 55 RECEIVED NYSCEF: 04/12/2022 13. This Court should issue an order permitting amendment of the Summons and Complaint and deeming the Supplemental Summons and Amended Complaint as being served upon all answering Defendants. WHEREFORE, it is respectfully requested that Plaintiff’s motion to serve an amended complaint as herein, should be granted in all respects and for such other and further relief as to this Court seems just and proper. Dated: New York, New York April 12, 2022 Bianca Cacace ________________________ Bianca Cacace, Esq. 4 of 4