ADDITIONAL CASES 1828 Richmond Terrace LLC and CPS Contracting Company, Inc., Third-Party Plaintiff v. Pentico Group NYC, Inc., Third-Party Defendant Recitation, as required by CPLR §2219 (a), of the papers considered in the review of this Motion Papers Numbered Notice of Motion and Affidavits Annexed 1-3 Order to Show Cause and Affidavits Annexed Answering Affidavits 4-6 Replying Affidavits Exhibits Var Other DECISION/ORDER Upon the foregoing papers, third-party defendant Pentico Group NYC, Inc. (Pentico)’s motion to amend its answer (Seq. 001), defendants 1828 Richmond Terrace, LLC (Richmond) and CPS Contracting Company, Inc. (CPS)’s cross-motion to amend their answer (Seq. 002),1 and plaintiff’s cross-motion for sanctions (Seq. 003) are decided as follows: Procedural Posture and Factual Background Plaintiff commenced this action to recover for damages he claims to have sustained on September 30, 2022 when he fell from a scaffold (see complaint). It is uncontested that the premises where plaintiff allegedly fell, 270 19th Street, Brooklyn, NY, is owned by defendant Richmond and that defendant CPS was hired as the contractor. Analysis As an initial matter, a cross-motion can only be served on a moving party (CPLR 2215). Therefore, defendants Richmond’s and CPS’s cross-motion is procedurally improper. Additionally, Pentico’s motion seeks to amend its third-party answer to assert an affirmative defense of fraud predicated on treatment plaintiff received, but Pentico does not have any direct claims against it by the plaintiff. Therefore, fraud would not constitute a meritorious defense to the claims in the third-party complaint. Amendment On the merits, leave to amend pleadings pursuant to CPLR 3025 (b) is generally liberally granted. However, that general rule is limited by certain circumstances — permission to amend is “committed to the broad discretion of the trial court” and the proposed amendments must be adequately plead (Vorobichik v. Greenpoint Goldman SM, LLC, 164 AD3d 866, 866 [2d Dept 2018]). In particular, fraud must be plead “in detail,” or “with particularity,” whether as a cause of action or as a defense (CPLR 3016 [b]; (Matter of Clarke v. Wallace Oil Co., Inc., 284 AD2d 492, 492-93 [2d Dept 2001]). “The elements of a cause of action sounding in fraud are a material misrepresentation of an existing fact, made with knowledge of the falsity, an intent to induce reliance thereon, justifiable reliance upon the misrepresentation…and damages” (Eva Chen Fine Jewelry, Inc. v. Recovery Racing IX, LLC, 222 AD3d 840, 842 [2d Dept 2023]). Defendant and third-party defendant have failed to plead the elements of fraud with particularity. The defendants’ proposed amendment is not based on any indication that the plaintiff individually made false or misleading representations. Moreover, the defendants do not claim to have justifiably relied on any such misstatements; indeed, the fact that defendants are actively litigating this matter indicates that they are not relying on any statements plaintiff has made about his alleged accident. Therefore, defendants’ proposed amendment states neither a viable cause of action nor an affirmative defense of fraud (see Vorobichik, 164 AD3d at 866-867). Moreover, there is no logical correspondence between the allegations contained in a RICO complaint (which at this stage are still only allegations) and the actual facts of this plaintiff’s accident. Defendants do not provide any particular and specific allegations that this plaintiff, in this action, committed fraud. Instead, defendants’ claim that the RICO suit, in which this plaintiff is not named or mentioned, provides these defendants with a “good faith basis” for believing that this accident was staged. This argument does not logically follow. Defendants also do not provide a justifiable excuse for delay in filing a motion to amend. The RICO complaint is predicated on a long history of alleged wrongdoing by the RICO defendants. The fact that these accusations were more recently memorialized in a RICO complaint does not excuse defendant’s delay in asserting its affirmative defenses once the plaintiff served his expert disclosures, or in a timely way thereafter. Moreover, the RICO complaint does not constitute new facts or evidence sufficient to warrant defendants’ request to amend its pleadings, as that complaint is merely a vehicle for allegations. This decision is made based on the motions, papers, and arguments before the court, and does not reflect the court’s assessment of any matters not currently at bar, including the merits of any pending Federal RICO action or any duly commenced claim for fraud. Conclusion Pentico’s motion to amend (Seq. 001) and Richmond’s and CPS’s cross-motion to amend (Seq. 002) are denied. Plaintiff’s cross-motion for sanctions (Seq. 003) is also denied, as it appears that Pentico’s, Richmond’s, and CPS’s arguments, though unsuccessful, are not evidence of actions rising to the level of sanctionable conduct. This constitutes the decision of the court. Dated: December 18, 2024
