Gerald Perkins v. New York State Electric & Gas Corporation Et Al‪.‬

Appeal from orders of the Supreme Court at Special Term (Lee, Jr., J.), entered June 15, 1982 and September 23, 1982 in Tompkins County, which denied plaintiffs motion for leave to serve an amended complaint. The facts giving rise to the personal injuries plaintiff allegedly suffered on August 17, 1978, are set out in our prior decision in this case (86 A.D.2d 722). Complaints alleging negligence and the maintenance of an inherently dangerous condition were served upon defendant New York State Electric & Gas Corp. (NYSEG) in November, 1979, and upon defendant New York Telephone Co. (NY Tel) in February, 1980. Examinations before trial were completed in April, 1980, and the following September plaintiff filed a note of issue and statement of readiness. On January 16, 1981, NYSEG moved for summary judgment against plaintiff and NY Tel. Shortly thereafter, on February 5, 1981, plaintiff sought to amend his complaint to assert a cause of action against both defendants based upon a violation of section 200 of the Labor Law. NYSEG opposed the motion to amend claiming that an amendment should not be permitted until the court rendered a decision upon the summary judgment motion. Plaintiff withdrew his motion to amend pending that decision. By order dated June 3, 1981, the motion was granted in favor of NYSEG; an appeal ensued and Special Terms order was reversed by this court on January 21, 1982 (86 A.D.2d 722). In the interim, on August 28, 1981, this case was struck from the Trial Calendar. On February 11, 1982, plaintiff moved once again to amend the complaint to include the Labor Law cause of action. Special Term denied the motion and this appeal followed. At the outset, we note that any delay which occurred after plaintiffs initial attempt to amend on February 5, 1981, is not properly chargeable to plaintiff. The [91 A.D.2d 1121 Page 1122]