the time within which the action must be commenced shall be extended to three years after the disability ceases. at the time the cause of action accrues, and the time otherwise limited for commencing the action is three years or more and expires no later than after the disability ceases. Further, CPLR § 208 provides in pertinent part, "If a person entitled to commence an action is under a disability because of infancy. " must be commenced within three (3) years. CPLR § 214(5) provides in part that, "an action to recover damages for personal injury. In reply, CON ED maintains its defense is not insufficient since plaintiff had its expert analyze the lightning arrestor in question and that a lightning storm occurred in the subject area in question days before the alleged incident. In her opposition, ALOMONTE contends CON ED ' s request to amend to assert an ' Act of God' defense should be denied as the claim is insufficient, conclusory, and devoid of merit. In its cross-motion CON ED seeks to amend its answer and assert an ' Act of God ' affirmative defense claiming it learned in discovery, lightning arrestors rarely explode and typically only do so under extreme conditions such as when they are struck by lightning. as a plaintiff since discovery has not yet concluded, and that no affidavit of merit is needed on a motion to amend. In reply, ALOMONTE maintains CON ED would not be prejudiced by adding G.R. In opposition, CON ED argues ALOMONTE' s application to amend is defective since there is no affidavit of merit as to her daughters ' injuries and that it would be prejudiced as it has not obtained any discovery as to G.R. as a co-plaintiff since her daughter was within the proximity of the exploding lamppost and allegedly suffered post-traumatic stress from the accident. ' ALOMONTE further seeks to add her infant daughter, G.R. 24968/2014E RECEIVED NYSCEF: within the lamppost known as a ' lightning arrestor. 2 of 5 BRONX COUNTY CLERK 09:08 AM NYSCEF DOC. Plaintiffs Counsel ' s Affinnation in Support, Ex. 2 AMEND ALOMONTE contends this Court should grant her leave to amend because after engaging in discovery she ascertained the cause of the exploding lamppost, an apparatus located 1 2 Plaintiff s Complaint,~ ~ 2-16. 1 As a result, ALOMONTE commenced the instant action by filing a summons and complaint on October 23, 2014. FACTUAL BACKGROUND ALOMONTE alleges that on Jshe was on a public sidewalk when a lamppost operated by CON ED suddenly exploded propelling debris and shrapnel in her direction, injuring her. After careful review of the motion papers, ALOMONTE's motion is GRANTED, and CON ED ' s cross motion is GRANTED. CON ED cross moves pursuant to CPLR § 3025(b) to assert an ' Act of God' affirmative defense in its answer. ALOMONTE now moves pursuant to CPLR § 3025(b) amend her complaint to clarify the instrumentality which caused her injury and to add her infant daughter as an additional plaintiff. ALMONTE was allegedly struck by shrapnel from a lamppost operated by defendant, CONSOLIDATED EDISON COMPANY OF NEW YORK, INC. DECISION This is a personal injury action whereby plaintiff, RAFAELINA D. : 24968/2019E CONSOLIDATED EDISON COMPANY OF NEW YORK, INC. ALMONTE, Plaintiff(s), -against- Index No. 24968/2014E RECEIVED NYSCEF: SUPREME COURT OF THE STATE OF NEW YORK BRONX COUNTY: Part 13 RAF AELINA D. This opinion is uncorrected and not selected for official publication. 2020 NY Slip Op 31611(U) ApSupreme Court, Bronx County Docket Number: 24968/2019E Judge: Fernando Tapia Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service.
0 Comments
Leave a Reply. |
AuthorWrite something about yourself. No need to be fancy, just an overview. ArchivesCategories |