You are here: / / THE MOTION TO AMEND THE COMPLAINT TO CORRECT A TYPO SHOULD HAVE BEEN GRANTED...
,

THE MOTION TO AMEND THE COMPLAINT TO CORRECT A TYPO SHOULD HAVE BEEN GRANTED (LABOR LAW 241 AND 241(B) RATHER THAN 240(1)); SUMMARY JUDGMENT CAN BE GRANTED ON AN UNPLEADED CAUSE OF ACTION; HERE THERE WAS A QUESTION OF FACT WHETHER THE FOUR-INCH ELEVATION DIFFERENTIAL WAS DE MINIMIS (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the motion to amend the complaint to correct a typographical error should have been granted and noted that a motion for summary judgment can be granted on an unpleaded cause of action. The complaint alleged violation of Labor Law 241 and 241 (b) instead of Labor Law 240(1). The Second Department went on to find that plaintiff was not entitled to summary judgment because there was a question of fact whether the accident was an “elevation-related” event–a cylinder had dropped four inches and injured plaintiff’s finger. The question of fact concerned whether the four-inch height differential was de minimis:

… [T]he proposed amendment corrected a typographical error, did not result in any prejudice or surprise to the defendants, and was not palpably insufficient or patently devoid of merit … . 

We note that, despite the fact that the plaintiff had not yet properly pleaded a Labor Law § 240(1) cause of action at the time that he made a motion for summary judgment on the issue of liability pursuant to Labor Law § 240(1), “summary judgment may be awarded on an unpleaded cause of action if the proof supports such cause and if the opposing party has not been misled to its prejudice” … . * * *

The plaintiff failed to meet his prima facie burden, as he did not prove, as a matter of law, that he sustained the type of elevation-related injury that Labor Law § 240(1) was intended to protect against. Namely, where the cylinder fell only four inches but did so with such force as to crush the plaintiff’s finger, there are triable issues of fact as to whether the elevation differential between the plaintiff and the falling object was de minimis … . Castillo v Hawke Enters., LLC, 2023 NY Slip Op 06505, Second Dept 12-20-23

Practice Point: The motion to amend the complaint to correct a typo should have been granted.

Practice Point: Where the facts support it, a summary judgment motion may be based on an unpleaded cause of action.

Practice Point: Here a cylinder dropped four inches, injuring plaintiff’s finger. There was a question of fact whether the elevation-differential was de minimis.

 

You might also like
PROCEEDING TO VALIDATE A DESIGNATING PETITION SHOULD HAVE BEEN DISMISSED AS UNTIMELY (SECOND DEPT).
Grant of Custody to Maternal Grandparents Rather than Parent Reversed
PLAINTIFF BANK FAILED TO MEET THE CRITERIA FOR THE BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE TO DEMONSTRATE STANDING, SUMMARY JUDGMENT SHOULD HAVE BEEN DENIED (SECOND DEPT).
THE NYPD IS A DEPARTMENT OF THE CITY AND CANNOT BE SEPARATELY SUED; THE 42 USC 1983 CIVIL RIGHTS VIOLATION CAUSE OF ACTION WAS NOT SUPPORTED BY SUFFICIENT ALLEGATIONS OF AN UNCONSTITUTIONAL CITY CUSTOM OR POLICY; THE OTHER CAUSES OF ACTION AGAINST THE CITY FALL BECAUSE THERE WAS PROBABLE CAUSE FOR PLAINTIFF’S ARREST AND THE FORCE USED BY THE POLICE WAS NOT EXCESSIVE UNDER THE CIRCUMSTANCES (SECOND DEPT).
DEVELOPMENT RIGHTS CONSTITUTE REAL PROPERTY WHICH CAN BE SOLD PURSUANT TO RPAPL 1602 2ND DEPT.
POST-DEATH INTEREST ON AN ANNUITY SHOULD NOT BE CALCULATED BY APPLYING THE INTEREST RATE AT THE TIME OF PAYMENT TO THE ENTIRE PERIOD BETWEEN THE DEATH OF THE ANNUITANT (1998) AND THE DATE OF PAYMENT (2012).
DEFENDANT DEMONSTRATED THE ABSENCE OF ACTUAL OR CONSTRUCTIVE NOTICE OF THE ALLEGEDLY SLIPPERY CONDITION IN THIS SLIP AND FALL CASE (FIRST DEPT).
TRIAL JUDGE’S INSTRUCTIONS TO THE JURORS AFTER THEY RETURNED AN INCONSISTENT VERDICT WERE INADEQUATE, NEW TRIAL ORDERED 2ND DEPT.

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

A CANINE SNIFF FOR DRUGS IS A SEARCH; ALTHOUGH THE APPELLATE DIVISION HAD ALSO... INFANT PLAINTIFF ASSUMED THE RISK OF FALLING BECAUSE OF PEBBLES AND WET GRASS...