" ... affidavits submitted by the defendant will seldom if ever warrant the relief he seeks unless too the affidavits establish conclusively that plaintiff has no cause of action."
How later courts described this case
- " ... affidavits submitted by the defendant will seldom if ever warrant the relief he seeks unless too the affidavits establish conclusively that plaintiff has no cause of action."
Written by the judges who cited it.
The opinion
Pena v City of New York
2025 NY Slip Op 32395(U)
July 7, 2025
Supreme Court, New York County
Docket Number: Index No. 154727/2022
Judge: Carol Sharpe
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.
This opinion is uncorrected and not selected for official
publication.
INDEX NO. 154727/2022
NYSCEF DOC. NO. 42 RECEIVED NYSCEF: 07/08/2025
SUPREME COURT OF THE STATE OF NEW YORK
NEW YORK COUNTY
PRESENT: HON. CAROL SHARPE PART 52M
Justice
X INDEX NO. 154727/2022
SERGIO PENA,
12/13/2024,
MOTION DATE 12/23/2024
Plaintiff,
MOTION SEQ. NO. 001 002
- V -
THE CITY OF NEW YORK, NYCHA MB HOUSING
DEVELOPMENT FUND CORPORATION, THE NEW YORK
DECISION + ORDER ON
CITY HOUSING AUTHORITY
MOTION
Defendant.
--------------------X
The following e-filed documents, listed by NYSCEF document number (Motion 001) 20, 21, 22, 23, 24,
25,26,27
were read on this motion to/for AMEND CAPTION/PLEADINGS
The following e-filed documents, listed by NYSCEF document number (Motion 002) 28, 29, 30, 31, 32,
33,34,35,36,37,38, 39,40
were read on this motion to/for DISMISSAL
Upon the foregoing documents, and following oral arguments, plaintiffs motion to amend
its pleadings and Defendant City ofNew York's motion to dismiss were both granted on the record.
Plaintiff moved for an order granting leave to supplement the summons and amend the
complaint, pursuant to CPLR § 1003 and CPLR 3025(b), to add Pact Renaissance Collaborative,
LLC, and Monadnock Construction Inc. as additional defendants, and to amend the caption of the
case accordingly (Motion Sequence #1). Thereafter, defendant The City of New York ("City")
moved for a motion to dismiss the complaint and any cross-claims against it pursuant to CPLR
§321 l(a)(7) for failure to state a cause of action (Motion Sequence #2). No opposition was filed
on either motion.
Plaintiff commenced this action by filing a summons and complaint on June 3, 2022,
alleging personal injuries suffered when he slipped and fell on a slippery staircase within a building
154727/2022 PENA, SERGIO vs. THE CITY OF NEW YORK ET AL Page 1 of 5
Motion No. 001 001 002
1 of 5
[* 1]
INDEX NO. 154727/2022
NYSCEF DOC. NO. 42 RECEIVED NYSCEF: 07/08/2025
located at 545 West 156th Street in New York County. Issue was joined upon the filing. of Answers
by New York City Housing Authority ("NYCHA") and NY CHA MB Housing Development Fund
Corporation (collectively "NYCHA Defendants") on July 11, 2022, and City on August 9, 2022,
respectively. City's Answer included cross-claims against NYCHA Defendants for liability and/or
indemnification.
CPLR § 1003 allows for parties to be added at any stage of the action by leave of the court
or by stipulation of all parties. CPLR 3025(b) states:
A party may amend his or her pleading, or supplement it by setting
forth additional or subsequent transactions or occurrences, at any
time by leave of court or by stipulation of all parties. Leave shall be
freely given upon such terms as may be just including the granting
of costs and continuances. Any motion to amend or supplement
pleadings shall be accompanied by the proposed amended or
supplemental pleading clearly showing the changes or additions to
be made to the pleading.
"Applications for leave to amend pleadings under CPLR 3025 (b) should be freely granted unless
the proposed amendment would unfairly prejudice or surprise the opposing party, or is palpably
insufficient or patently devoid of merit." TD Bank, NA. v. Keenan, 221 A.D.3d 1040, 1041, 201
N.Y.S.3d 442, 444 (2 nd Dept. 2023); See also First Natl. Bank of Long Is. v. Four Keys Realty,
LLC, 213 A.D.3d 639,641, 182 N.Y.S.3d 274,276 (2 nd Dept. 2023). "The burden of demonstrating
prejudice or surprise, or that a proposed amendment is palpably insufficient or patently devoid of
merit, falls upon the party opposing the motion." Ditech Fin., LLC v. Khan, 189 A.D.3d 1360,
1362, 139 N.Y.S.3d 293, 296 (2 nd Dept. 2020). "The determination to permit or deny the
amendment is committed to the sound and broad discretion of the trial court [internal citations
omitted], and its determination will not lightly be set aside." Park v. Home Depot US.A., Inc., 183
A.D.3d 645,646, 121 N.Y.S.3d 641,642 (2 nd Dept. 2020). See lngrami v. Rovner, 45 A.D.3d 806,
847 N.Y.S.2d 132 (2 nd Dept. 2007).
154727/2022 PENA, SERGIO vs. THE CITY OF NEW YORK ET AL Page 2 of 5
Motion No. 001 001 002
[* 2] 2 of 5
INDEX NO. 154727/2022
NYSCEF DOC. NO. 42 RECEIVED NYSCEF: 07/08/2025
Plaintiff seeks to file the supplemental summons and amended complaint on the grounds
that they learned about two additional defendants' possible involvement in the incident during the
50(h) hearings. Plaintiff believes they are responsible for some of the maintenance, cleaning and
repair of the premises where the alleged incident took place. Plaintiff properly filed its motion
pursuant to CPLR §1003, and as neither NYCHA Defendants nor City opposed the motion, there
is no evidence of prejudice or surprise that would unfairly prevent the defendants from defending
themselves in the action. Accordingly, the motion should be granted.
When a court considers a motion to dismiss under CPLR 321 l(a)(7), the pleadings must
be liberally construed, the facts as alleged in the complaint are accepted as true, the plaintiff is
given "the benefit of every possible favorable inference, and [the court] determine[s] only whether
the facts as alleged fit within any cognizable legal theory." Leon v. Martinez, 84 N.Y.2d 83, 87-
88, 614 N.Y.S.2d 972, 638 N.E.2d 511 (1994); See also Goshen v. Mut. Life Ins. Co., 98 N.Y.2d
314, 326, 746 N.Y.S.2d 858, 864-65, 774 N.E.2d 1190, 1196-97 (2002). "When evidentiary
material is considered, the criterion is whether the proponent of the pleading has a cause of action,
not whether he has stated one, and, unless it has been shown that a material fact as claimed by the
pleader to be one is not a fact at all and unless it can be said that no significant dispute exists
regarding it, again dismissal should not eventuate." Guggenheimer v. Ginzburg, 43 N.Y.2d 268,
275,401 N.Y.S.2d 182,185,372 N.E.2d 17, 20-21 (1977). See also Rovello v. Orofino Realty Co.,
40 NY2d 633,636,389 N.Y.S.2d 314,316,357 N.E.2d 970,972 (1976)(" ... affidavits submitted
by the defendant will seldom if ever warrant the relief he seeks unless too the affidavits establish
conclusively that plaintiff has no cause of action.")
154727/2022 PENA, SERGIO vs. THE CITY OF NEW YORK ET AL Page 3 of 5
Motion No. 001 001 002
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INDEX NO. 154727/2022
NYSCEF DOC. NO. 42 RECEIVED NYSCEF: 07/08/2025
Here, plaintiffs complaint alleges that City "owned, operated, inspected, supervised,
controlled, designed, constructed, managed, maintained and repaired" the building in which the
alleged incident took place (Plaintiffs Verified Complaint, NYSCEF Doc. # 1, ,I25). However,
City's Affirmation in Support of its motion includes, as an exhibit, the affidavit of David Schloss,
a Senior Title Examiner from the Office of Corporation Counsel, which states that the building in
which the alleged incident took place is deeded to NY CHA (NYCSEF Doc. #34). This fact negates
plaintiffs contention in its complaint that the City owned the building, and proves that City owes
no duty to plaintiff, thus no cause of action exists. Accordingly, it is hereby
ORDERED, that plaintiffs motion to supplement and amend the complaint, and amend
the caption, is granted; it is further
ORDERED, that defendant City of New York's motion to dismiss plaintiffs claims and
any cross-claims against it is granted; it is further
ORDERED, that the City of New York be removed as a party to this action; it is further
ORDERED, that the action is severed and continued against the remaining defendants; it
is further
ORDERED, that Pact Renaissance Collaborative, LLC and Monadnock Construction Inc.,
are hereby added as additional defendants in this action; it is further
ORDERED, that the caption be amended to reflect the dismissal and amendments, and
that all future papers filed with the court bear the amended caption; it is further
ORDERED, that the caption is amended to read as follows:
---------------------------------------------------------------------X
SERGIO PENA,
Plaintiff,
- V -
154727/2022 PENA, SERGIO vs. THE CITY OF NEW YORK ET AL Page 4 of 5
Motion No. 001 001 002
[* 4] 4 of 5
INDEX NO. 154727/2022
NYSCEF DOC. NO. 42 RECEIVED NYSCEF: 07/08/2025
NYCHA MB HOUSING DEVELOPMENT FUND
CORPORATION, NEW YORK CITY HOUSING
AUTHORITY, PACT RENAISSANCE COLLABORATIVE,
LLC, MONADNOCK CONSTRUCTION INC.
Defendants.
---------------------------------------------------------------------------X
; it is further
ORDERED, that counsel for plaintiff shall serve a copy of this order with notice of entry
upon all parties and the Clerk of the Court within twenty (20) days of the date of this Order, and
shall file proof of said service, and the Clerk of the Court is directed to mark the court's records to
reflect the change in the caption herein; and it is further
ORDERED, that such service upon the Clerk of the Court 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).
This constitutes the Decision and Order of the Court.
ENTER:
July 7, 2025
DATE ~
HON. CAROL SHARPE
;_···-~-........ .~~ J.S.C.
CHECK ONE: CASE DISPOSED NON-FINAL DISPOSITION
GRANTED □ DENIED GRANTED IN PART □ OTHER
APPLICATION: SETTLE ORDER SUBMIT ORDER
CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT □ REFERENCE
154727/2022 PENA, SERGIO vs. THE CITY OF NEW YORK ET AL Page 5 of 5
Motion No. 001 001 002
[* 5] 5 of 5