Preview
FILED: NEW YORK COUNTY CLERK 10/12/2022 02:05 PM INDEX NO. 161241/2020
NYSCEF DOC. NO. 62 RECEIVED NYSCEF: 10/12/2022
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
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SEAN YOUNG and KIMBERLY YOUNG, AFFIRMATION IN
PARTIAL OPPOSITION
Plaintiffs
Index No.:161241/2020
-against-
TP# 595299/2022
JAMESTOWN 450 WEST 15TH STREET L.P.,
JAMESTOWN PROPERTIES CORP., Return date: 10/20/22
AGB 15TH STREET L.L.C, MILK STUDIOS,
LLC, BRODERVILLE PICTURES and NORTHERN
VARIABLE, LLC D/B/A WINDMILL STUDIOS,
Defendants.
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MILK STUDIOS, LLC.,
Third-Party Plaintiff,
-against-
BRODERVILLE PICTURES and NORTHERN VARIABLE,
LLC D/B/A WINDMILL STUDIOS NYC.,
Third-party Defendant.
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CURTIS B. GILFILLAN, an attorney duly admitted to practice law before the
Courts of the State of New York, hereby affirms the following to be true under the
penalties of perjury.
1. I am an associate with the law offices of Terrence F. Kuhn, attorneys for
defendant/third-party plaintiff, MILK STUDIOS, LLC (hereinafter referred to as “MILK
STUDIOS”), and, as such, am fully familiar with the facts and proceedings in this action
based upon a review of the file maintained by this office.
2. I submit this Affirmation in Partial Opposition to the motion of the
plaintiffs for an Order pursuant to CPLR §3025 for leave to serve an Amended Complaint
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insofar as it seeks to add Labor Law §§241(6) and 200 causes of action against MILK
STUDIOS. That portion of plaintiffs’ motion which seeks leave to amend the caption to
add third-party defendants, BRODERVILLE PICTURES and NORTHERN VARIABLE,
LLC D/B/A WINDMILL STUDIOS NYC (hereinafter referred to as “BRODERVILLE”
and “WINDMILL”), as direct defendants is not opposed by MILK STUDIOS.
3. Plaintiffs’ motion insofar as it seeks leave to amend the Complaint to add
causes of action sounding in violations of Labor Law §§241(6) and 200 against MILK
STUDIOS should be denied because the three year statute of limitations for plaintiffs to
timely assert said causes of action pursuant to CPLR §214 has expired and, as such, the
causes of action are devoid of merit. The motion must also be denied because plaintiffs
proffer no reasonable excuse for the inordinate delay in making the instant motion and in
light of the prejudice to MILK STUDIOS in having to defend claims of Labor Law
violations alleged for the first time over four years after the happening of the accident.
4. MILK STUDIOS acknowledges that motions pursuant to CPLR
§3025(b) for leave to amend a pleading are addressed to the discretion of the court and,
generally, “should be freely granted”. McKinney’s CPLR 3025(a). However, it is
submitted that the exercise of that discretion is limited and should only be granted “in the
absence of prejudice or surprise resulting directly from delay in seeking leave” and
should not be granted where “the proposed amendment is palpably insufficient or
patently devoid of merit”. Wander v. St. John's Univ., 163 A.D.3d 896, 896–897 (2d
Dept. 2018). A motion to amend a complaint to add a cause of action that is time barred
under the applicable statute of limitations is “patently devoid of merit”. Id. at 897.
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5. Here, the accident that is the subject of the instant lawsuit occurred on
August 6, 2018.1 The original Complaint was filed in December 2020. The three year
statute of limitations to assert a cause of action based on a violation of the Labor Law
expired on August 6, 2021. Plaintiffs filed the instant motion for leave to amend the
Complaint on September 30, 2022. Accordingly, the motion for leave to amend the
Complaint to assert violations of the Labor Law should be denied because the causes of
action are time barred and, thus, the motion is “patently devoid of merit”.
6. In Schwartz v. Walter, 171 A.D.3d 969 (2d Dept. 2019), the infant
daughter of the plaintiff was struck and killed by a vehicle in August 2011. The plaintiff
commenced the lawsuit in 2012 for personal injuries, wrongful death and loss of services.
In 2015, the plaintiff moved to amend his complaint to allege negligent inflection of
emotional distress. The Appellate Division affirmed the lower court’s denial of plaintiff’s
motion finding that “the plaintiff did not seek to amend his complaint to add
a cause of action to recover damages for negligent infliction of emotional distress until
after the three-year statute of limitation had expired (see CPLR 214[5]; Goldstein v.
Massachusetts Mut. Life Ins. Co., 32 A.D.3d 821, 821, 820 N.Y.S.2d 852), and the
plaintiff did not argue that the cause of action was timely pursuant to the relation-back
doctrine (internal citations omitted).” Id. at 970. See also Motz v. Cuevas, 127 A.D.2d
637 (2d Dept. 1987) (Plaintiff in wrongful death action against corporation moved for
leave to serve amended complaint asserting new cause of action. The Appellate Division
held that plaintiff could not amend complaint, as the new cause of action was time barred,
1
The accident date noted in the “Procedural History & Relevant Facts” of plaintiff’s Affirmation in
Support of the motion is incorrect. Plaintiff’s counsel mistakenly states that “The Complaint alleges that on
August 18, 2019, Plaintiff, Sean Young, was injured…”. The date of accident in the original Complaint is
August 6, 2018.
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original pleadings did not give adequate notice of that cause which thus could not be
deemed to relate back to date of original complaint, and corporation would experience
undue prejudice if that amendment was permitted.)
7. In Martin v. City of New York, 153 A.D.3d 63 (2d Dept. 2017), the
Appellate Division affirmed the lower court’s denial of plaintiff’s motion to amend the
complaint to add a cause of action alleging malicious prosecution where the statute of
limitations had expired. Although “[t]he relation-back doctrine permits a plaintiff to
interpose a claim or cause of action which would otherwise be time-barred, where the
allegations of the original complaint gave notice of the transactions or occurrences to be
proven and the cause of action would have been timely interposed if asserted in the
original complaint”, the Court found that “the original complaint failed to provide the
defendant with notice of the need to defend against allegations that the defendant
commenced or continued the underlying criminal proceeding, such as by supplying the
prosecutor with falsified evidence”. Id. at 694-95.
8. So too here, the plaintiffs did not move to amend the Complaint until
September 30, 2022, over one year after the expiration of the three-year statute of
limitations. They also did not argue relation-back doctrine in their motion papers. Even if
they made a relation-back argument, it would fail because the plaintiffs’ original
Complaint does not give adequate notice of causes of action based on violations of Labor
Law 241(6) or 200. Contrary plaintiff’s counsel’s statement in the “Procedural History &
Relevant Facts”, the original Complaint did not allege that the plaintiff “was injured after
he tripped and fell over a wooden 2x4 during the course of his employment with non-
party Drape Kings Inc. while working at 450 West 15th Street, New York, NY”. See
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Para. 13 of Lacertosa’s Affirmation in Support. The original Complaint also did not
indicate that the “Plaintiff was installing carpentry and performing labor upon the
physical premises when he was injured” (elsewhere plaintiff’s counsel asserts that his
client was installing “draping” and “carpeting”). The original Complaint made no
mention of plaintiff Sean Young tripping or falling over anything, let alone a wooden
2x4, or that he was in the course of his employment or performing carpentry, installing
draping or carpeting or any other “labor” when he was injured. There is nothing in the
Complaint that frames this accident as a work-related accident or one that would qualify
as an enumerated activity under the Labor Law. In fact, the original Complaint was silent
as to any factual circumstances of the alleged accident. As such, plaintiff cannot
demonstrate that it placed MILK STUDIOS on notice of any claim of Labor Law
violations by the allegations contained in the original Complaint.
9. In addition to being patently devoid of merit and failing to argue that the
Labor Law causes of action are timely pursuant to the relation-back theory, plaintiff’s
motion to amend the complaint should be denied because of prejudice to MILK
STUDIOS. To now allow the amendment, which is being sought for the first time over
one year after the expiration of the statute of limitations, and assert Labor Law violations
over four years after the accident would unduly prejudice MILK STUDIOS in its defense
of this case. Labor Law violations, in particular Labor Law §241(6), implicate statutory
standards and code violations above and beyond typical reasonableness standard of
ordinary negligence. Four years have passed since the happening of the subject accident
and it has been almost two years since the original Complaint was filed. The opportunity
for MILK STUDIO to investigate conditions existing at the time of the accident which
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would bear on the alleged Industrial Code violations has been compromised by the delay
in the assertion of Labor Law violations.
10. Plaintiffs’ motion also fails to provide any excuse for the inordinate delay
in seeking to amend the Complaint to assert Labor Law violations. Plaintiffs merely state
that the defect in failing to allege Labor Law causes of action was discovered in August
2022, a stipulation to file an Amended Complaint was sought but objected to and the
instant motion was thereafter made; therefore, there was no delay in making the motion.
(See Plaintiffs’ Memorandum of Law, p. 3). This fails to explain the delay in discovering
the defect. Plaintiffs’ Verified Bill of Particulars dated May 4, 2021, a copy of which is
annexed hereto as Exhibit “A”, framed the accident as a trip and fall with no mention of
the ithappening while the plaintiff was working or, otherwise, engaged in any labor or
construction activity. And aside from the pleadings and discovery exchanged since the
commencement of the action in December 2020, preliminary and status conferences have
been held and depositions scheduled. Thus, there has been ample time for plaintiffs to
have reviewed this case and discovered the alleged defect in pleading. It is respectfully
submitted that the plaintiffs’ motion falls short of offering any reasonable excuse for the
delay in seeking the amendment sought now by leave of Court.
11. In Williams v. New York University Hospital, 88 A.D.2d 540 (1stDept.
1982), the plaintiff’s wife sought leave to add a cause of action for loss of services over
two and one-half years after the complaint was filed, five years after the accident, which
as after the statute of limitations had expired, and after discovery had been completed.
The couple were married at the time of the filing of the action, but that was not noted in
the original complaint. The First Department found, that while leave should be freely
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given, there was an “the inordinate delay” and plaintiffs “failed in their affidavit to have
included any explanation for the inordinate delay.” Id at 540. See also Spence v. Bear
Stearns & Co., Inc., 264 A.D.2d 601 (1st Dept. 1999) (Improvident exercise of discretion
to grant leave to amend the complaint in light of the inexcusable delay of 6½ years in
seeking to amend to add new theory of liability and increase the ad damnum clause)
12. Here, there has been no excuse, let alone a reasonable one, offered as to
the delay in discovering and seeking to amend the original Complaint sooner than over a
year after the expiration of the statute of limitations for causes of action based on Labor
Law violations. Accordingly, plaintiffs’ motion insofar as it seeks leave to amend the
original Complaint to add causes of action sounding in violations of Labor Law §§241(6)
and 200 against MILK STUDIOS should be denied.
WHEREFORE, defendant/third-party plaintiff, MILK STUDIOS, LLC,
respectfully requests that the Court enter an Order denying the motion of the plaintiffs
insofar as it seeks leave pursuant to CPLR §3025 to amend the Complaint to add causes
of action against MILK STUDIOS sounding in Labor Law 241(6) and 200, together with
such other and further relief as this Court deems just and proper.
Dated: New York, New York
October 12, 2022
Curtis B. Gilfillan
______________________________
CURTIS B. GILFILLAN, ESQ.,
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Preview
FILED: NEW YORK COUNTY CLERK 10/12/2022 02:05 PM INDEX NO. 161241/2020 NYSCEF DOC. NO. 62 RECEIVED NYSCEF: 10/12/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ----------------------------------------------------------------- SEAN YOUNG and KIMBERLY YOUNG, AFFIRMATION IN PARTIAL OPPOSITION Plaintiffs Index No.:161241/2020 -against- TP# 595299/2022 JAMESTOWN 450 WEST 15TH STREET L.P., JAMESTOWN PROPERTIES CORP., Return date: 10/20/22 AGB 15TH STREET L.L.C, MILK STUDIOS, LLC, BRODERVILLE PICTURES and NORTHERN VARIABLE, LLC D/B/A WINDMILL STUDIOS, Defendants. ---------------------------------------------------------------------- MILK STUDIOS, LLC., Third-Party Plaintiff, -against- BRODERVILLE PICTURES and NORTHERN VARIABLE, LLC D/B/A WINDMILL STUDIOS NYC., Third-party Defendant. ---------------------------------------------------------------------------- CURTIS B. GILFILLAN, an attorney duly admitted to practice law before the Courts of the State of New York, hereby affirms the following to be true under the penalties of perjury. 1. I am an associate with the law offices of Terrence F. Kuhn, attorneys for defendant/third-party plaintiff, MILK STUDIOS, LLC (hereinafter referred to as “MILK STUDIOS”), and, as such, am fully familiar with the facts and proceedings in this action based upon a review of the file maintained by this office. 2. I submit this Affirmation in Partial Opposition to the motion of the plaintiffs for an Order pursuant to CPLR §3025 for leave to serve an Amended Complaint 1 of 7 FILED: NEW YORK COUNTY CLERK 10/12/2022 02:05 PM INDEX NO. 161241/2020 NYSCEF DOC. NO. 62 RECEIVED NYSCEF: 10/12/2022 insofar as it seeks to add Labor Law §§241(6) and 200 causes of action against MILK STUDIOS. That portion of plaintiffs’ motion which seeks leave to amend the caption to add third-party defendants, BRODERVILLE PICTURES and NORTHERN VARIABLE, LLC D/B/A WINDMILL STUDIOS NYC (hereinafter referred to as “BRODERVILLE” and “WINDMILL”), as direct defendants is not opposed by MILK STUDIOS. 3. Plaintiffs’ motion insofar as it seeks leave to amend the Complaint to add causes of action sounding in violations of Labor Law §§241(6) and 200 against MILK STUDIOS should be denied because the three year statute of limitations for plaintiffs to timely assert said causes of action pursuant to CPLR §214 has expired and, as such, the causes of action are devoid of merit. The motion must also be denied because plaintiffs proffer no reasonable excuse for the inordinate delay in making the instant motion and in light of the prejudice to MILK STUDIOS in having to defend claims of Labor Law violations alleged for the first time over four years after the happening of the accident. 4. MILK STUDIOS acknowledges that motions pursuant to CPLR §3025(b) for leave to amend a pleading are addressed to the discretion of the court and, generally, “should be freely granted”. McKinney’s CPLR 3025(a). However, it is submitted that the exercise of that discretion is limited and should only be granted “in the absence of prejudice or surprise resulting directly from delay in seeking leave” and should not be granted where “the proposed amendment is palpably insufficient or patently devoid of merit”. Wander v. St. John's Univ., 163 A.D.3d 896, 896–897 (2d Dept. 2018). A motion to amend a complaint to add a cause of action that is time barred under the applicable statute of limitations is “patently devoid of merit”. Id. at 897. 2 of 7 FILED: NEW YORK COUNTY CLERK 10/12/2022 02:05 PM INDEX NO. 161241/2020 NYSCEF DOC. NO. 62 RECEIVED NYSCEF: 10/12/2022 5. Here, the accident that is the subject of the instant lawsuit occurred on August 6, 2018.1 The original Complaint was filed in December 2020. The three year statute of limitations to assert a cause of action based on a violation of the Labor Law expired on August 6, 2021. Plaintiffs filed the instant motion for leave to amend the Complaint on September 30, 2022. Accordingly, the motion for leave to amend the Complaint to assert violations of the Labor Law should be denied because the causes of action are time barred and, thus, the motion is “patently devoid of merit”. 6. In Schwartz v. Walter, 171 A.D.3d 969 (2d Dept. 2019), the infant daughter of the plaintiff was struck and killed by a vehicle in August 2011. The plaintiff commenced the lawsuit in 2012 for personal injuries, wrongful death and loss of services. In 2015, the plaintiff moved to amend his complaint to allege negligent inflection of emotional distress. The Appellate Division affirmed the lower court’s denial of plaintiff’s motion finding that “the plaintiff did not seek to amend his complaint to add a cause of action to recover damages for negligent infliction of emotional distress until after the three-year statute of limitation had expired (see CPLR 214[5]; Goldstein v. Massachusetts Mut. Life Ins. Co., 32 A.D.3d 821, 821, 820 N.Y.S.2d 852), and the plaintiff did not argue that the cause of action was timely pursuant to the relation-back doctrine (internal citations omitted).” Id. at 970. See also Motz v. Cuevas, 127 A.D.2d 637 (2d Dept. 1987) (Plaintiff in wrongful death action against corporation moved for leave to serve amended complaint asserting new cause of action. The Appellate Division held that plaintiff could not amend complaint, as the new cause of action was time barred, 1 The accident date noted in the “Procedural History & Relevant Facts” of plaintiff’s Affirmation in Support of the motion is incorrect. Plaintiff’s counsel mistakenly states that “The Complaint alleges that on August 18, 2019, Plaintiff, Sean Young, was injured…”. The date of accident in the original Complaint is August 6, 2018. 3 of 7 FILED: NEW YORK COUNTY CLERK 10/12/2022 02:05 PM INDEX NO. 161241/2020 NYSCEF DOC. NO. 62 RECEIVED NYSCEF: 10/12/2022 original pleadings did not give adequate notice of that cause which thus could not be deemed to relate back to date of original complaint, and corporation would experience undue prejudice if that amendment was permitted.) 7. In Martin v. City of New York, 153 A.D.3d 63 (2d Dept. 2017), the Appellate Division affirmed the lower court’s denial of plaintiff’s motion to amend the complaint to add a cause of action alleging malicious prosecution where the statute of limitations had expired. Although “[t]he relation-back doctrine permits a plaintiff to interpose a claim or cause of action which would otherwise be time-barred, where the allegations of the original complaint gave notice of the transactions or occurrences to be proven and the cause of action would have been timely interposed if asserted in the original complaint”, the Court found that “the original complaint failed to provide the defendant with notice of the need to defend against allegations that the defendant commenced or continued the underlying criminal proceeding, such as by supplying the prosecutor with falsified evidence”. Id. at 694-95. 8. So too here, the plaintiffs did not move to amend the Complaint until September 30, 2022, over one year after the expiration of the three-year statute of limitations. They also did not argue relation-back doctrine in their motion papers. Even if they made a relation-back argument, it would fail because the plaintiffs’ original Complaint does not give adequate notice of causes of action based on violations of Labor Law 241(6) or 200. Contrary plaintiff’s counsel’s statement in the “Procedural History & Relevant Facts”, the original Complaint did not allege that the plaintiff “was injured after he tripped and fell over a wooden 2x4 during the course of his employment with non- party Drape Kings Inc. while working at 450 West 15th Street, New York, NY”. See 4 of 7 FILED: NEW YORK COUNTY CLERK 10/12/2022 02:05 PM INDEX NO. 161241/2020 NYSCEF DOC. NO. 62 RECEIVED NYSCEF: 10/12/2022 Para. 13 of Lacertosa’s Affirmation in Support. The original Complaint also did not indicate that the “Plaintiff was installing carpentry and performing labor upon the physical premises when he was injured” (elsewhere plaintiff’s counsel asserts that his client was installing “draping” and “carpeting”). The original Complaint made no mention of plaintiff Sean Young tripping or falling over anything, let alone a wooden 2x4, or that he was in the course of his employment or performing carpentry, installing draping or carpeting or any other “labor” when he was injured. There is nothing in the Complaint that frames this accident as a work-related accident or one that would qualify as an enumerated activity under the Labor Law. In fact, the original Complaint was silent as to any factual circumstances of the alleged accident. As such, plaintiff cannot demonstrate that it placed MILK STUDIOS on notice of any claim of Labor Law violations by the allegations contained in the original Complaint. 9. In addition to being patently devoid of merit and failing to argue that the Labor Law causes of action are timely pursuant to the relation-back theory, plaintiff’s motion to amend the complaint should be denied because of prejudice to MILK STUDIOS. To now allow the amendment, which is being sought for the first time over one year after the expiration of the statute of limitations, and assert Labor Law violations over four years after the accident would unduly prejudice MILK STUDIOS in its defense of this case. Labor Law violations, in particular Labor Law §241(6), implicate statutory standards and code violations above and beyond typical reasonableness standard of ordinary negligence. Four years have passed since the happening of the subject accident and it has been almost two years since the original Complaint was filed. The opportunity for MILK STUDIO to investigate conditions existing at the time of the accident which 5 of 7 FILED: NEW YORK COUNTY CLERK 10/12/2022 02:05 PM INDEX NO. 161241/2020 NYSCEF DOC. NO. 62 RECEIVED NYSCEF: 10/12/2022 would bear on the alleged Industrial Code violations has been compromised by the delay in the assertion of Labor Law violations. 10. Plaintiffs’ motion also fails to provide any excuse for the inordinate delay in seeking to amend the Complaint to assert Labor Law violations. Plaintiffs merely state that the defect in failing to allege Labor Law causes of action was discovered in August 2022, a stipulation to file an Amended Complaint was sought but objected to and the instant motion was thereafter made; therefore, there was no delay in making the motion. (See Plaintiffs’ Memorandum of Law, p. 3). This fails to explain the delay in discovering the defect. Plaintiffs’ Verified Bill of Particulars dated May 4, 2021, a copy of which is annexed hereto as Exhibit “A”, framed the accident as a trip and fall with no mention of the ithappening while the plaintiff was working or, otherwise, engaged in any labor or construction activity. And aside from the pleadings and discovery exchanged since the commencement of the action in December 2020, preliminary and status conferences have been held and depositions scheduled. Thus, there has been ample time for plaintiffs to have reviewed this case and discovered the alleged defect in pleading. It is respectfully submitted that the plaintiffs’ motion falls short of offering any reasonable excuse for the delay in seeking the amendment sought now by leave of Court. 11. In Williams v. New York University Hospital, 88 A.D.2d 540 (1stDept. 1982), the plaintiff’s wife sought leave to add a cause of action for loss of services over two and one-half years after the complaint was filed, five years after the accident, which as after the statute of limitations had expired, and after discovery had been completed. The couple were married at the time of the filing of the action, but that was not noted in the original complaint. The First Department found, that while leave should be freely 6 of 7 FILED: NEW YORK COUNTY CLERK 10/12/2022 02:05 PM INDEX NO. 161241/2020 NYSCEF DOC. NO. 62 RECEIVED NYSCEF: 10/12/2022 given, there was an “the inordinate delay” and plaintiffs “failed in their affidavit to have included any explanation for the inordinate delay.” Id at 540. See also Spence v. Bear Stearns & Co., Inc., 264 A.D.2d 601 (1st Dept. 1999) (Improvident exercise of discretion to grant leave to amend the complaint in light of the inexcusable delay of 6½ years in seeking to amend to add new theory of liability and increase the ad damnum clause) 12. Here, there has been no excuse, let alone a reasonable one, offered as to the delay in discovering and seeking to amend the original Complaint sooner than over a year after the expiration of the statute of limitations for causes of action based on Labor Law violations. Accordingly, plaintiffs’ motion insofar as it seeks leave to amend the original Complaint to add causes of action sounding in violations of Labor Law §§241(6) and 200 against MILK STUDIOS should be denied. WHEREFORE, defendant/third-party plaintiff, MILK STUDIOS, LLC, respectfully requests that the Court enter an Order denying the motion of the plaintiffs insofar as it seeks leave pursuant to CPLR §3025 to amend the Complaint to add causes of action against MILK STUDIOS sounding in Labor Law 241(6) and 200, together with such other and further relief as this Court deems just and proper. Dated: New York, New York October 12, 2022 Curtis B. Gilfillan ______________________________ CURTIS B. GILFILLAN, ESQ., 7 of 7