The following e-filed documents, listed by NYSCEF document number (Motion 001) 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 50 were read on this motion to/for AMEND CAPTION/PLEADINGS. ADDITIONAL CASES Empire State Realty Trust, Inc. and Esrt Empire State Building, L.L.C., Third-Party Plaintiffs v. First Quality Maintenance II LLC d/b/a First Quality Maintenance a/k/a Alliance Maintenance, Third-Party Defendant; 595904/2020 Esrt Empire State Building, L.L.C., Second Third-Party Plaintiff v. Universal Baling Co Inc., Universal Environmental Consulting Services Inc., and Universal Environmental Consulting, Inc., Second Third-Party Defendants; 595500/2022 Universal Baling Co Inc., Universal Environmental Consulting Services Inc., and Universal Environmental Consulting, Inc. Third Third-Party Plaintiffs v. Action Carting, Action Environmental Services, Action Environmental Group, Inc., and Interstate Waste Services, Inc., Third Third-Party Defendants; 595332/2023 DECISION ORDER ON MOTION This personal injury action arises out of an accident that occurred on February 24, 2020 at or near the loading dock area of the building located at 350 Fifth Avenue, New York, New York (the premises). By this motion, plaintiff Alberto Torres moves, pursuant to CPLR 305 (a) and 3025, for leave to serve a supplemental summons and amended complaint upon second third-party defendants Universal Baling Co Inc., Universal Environmental Consulting Services Inc. and Universal Environmental Consulting, Inc. (collectively, Universal) to add them as direct defendants in the main action. Plaintiff also seeks an order deeming the amended summons and complaint served nunc pro tunc on all other defendants who have appeared in the action. The motion is not opposed. Is well settled that “‘leave to amend a pleading should be freely granted in the absence of prejudice to the non-moving party where the amendment is not patently lacking in merit’” (Davis v. South Nassau Communities Hosp., 26 NY3d 563, 580 [2015] [citation omitted]). “[A] party opposing leave to amend ‘must overcome a heavy presumption of validity in favor of [permitting amendment]‘” (McGhee v. Odell, 96 AD3d 449, 450 [1st Dept 2012] [citation omitted]), by demonstrating prejudice or surprise or that the proposed amendment is palpably insufficient or patently devoid of merit (MBIA Ins. Corp. v. Greystone & Co., Inc., 74 AD3d 499, 499 [1st Dept 2010]). Plaintiff has demonstrated the merit of the amendment. It is alleged in the second third-party complaint that defendant/third-party plaintiff ESRT Empire State Building, L.L.C. had retained Universal to provide services at the premises where the subject accident occurred (NYSCEF Doc No. 44, Linder affirmation, exhibit 7 at 6). The court observes that Universal has served an answer to the second-third party (NYSCEF Doc No. 52) and has commenced a third third-party action against third third-party defendants, Action Carting, Action Environmental Services, Action Environmental Group, Inc., and Interstate Waste Services, Inc.; Universal had retained them to perform waste removal and waste carting services at the premises (NYSCEF Doc No. 54, third third-party complaint 17). Accordingly, it is ORDERED that the motion brought by plaintiff Alberto Torres for leave to serve a supplemental summons and amended complaint (motion sequence no. 001) is granted, without opposition; and it is further ORDERED that a supplemental summons and amended complaint, in the form annexed to the motion papers as exhibit 1 (NYSCEF Doc No. 38), shall be served, in accordance with the Civil Practice Law and Rules, upon the additional parties, Universal Baling Co Inc., Universal Environmental Consulting Services Inc. and Universal Environmental Consulting, Inc., in this action within 30 days after service of a copy of this order with notice of entry; and it is further ORDERED that the main action shall bear the following caption: [ caption on following pager] Albert Torres, Plaintiff v. Esrt Empire State Building, L.L.C., Universal Baling Co Inc., Universal Environmental Consulting Services Inc. and Universal Environmental Consulting, Inc., Defendants; 153844/2020 and third-party actions. ; and it is further ORDERED that the amended complaint, in the form annexed to the motion papers as exhibit 1 (NYSCEF Doc No. 38), shall be deemed served nunc pro tunc upon service of a copy of this order with notice of entry upon the other parties who have appeared in this action; and it further ORDERED that counsel for the moving party shall serve a copy of this order with notice of entry upon the County Clerk and the Clerk of the General Clerk’s Office, who are directed to mark the court’s records to reflect the parties being added pursuant hereto; and it is further ORDERED that such service upon the County Clerk and the Clerk of the General Clerk’s Office shall be made in accordance with the procedures set forth in the Protocol on Courthouse and County Clerk Procedures for Electronically Filed Cases (accessible at the “E-Filing” page on the court’s website). CHECK ONE: CASE DISPOSED X NON-FINAL DISPOSITION X GRANTED DENIED GRANTED IN PART OTHER APPLICATION: SETTLE ORDER SUBMIT ORDER CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE Dated: October 27, 2023
