# Pena v. City of New York > New York Supreme Court, New York County · July 7, 2025 · 2025 NY Slip Op 32395(U) URL: https://www.frixlaw.com/law-library/cases/11098347 ## Case - **Court:** New York Supreme Court, New York County - **Decided:** July 7, 2025 - **Citations:** 2025 NY Slip Op 32395(U) - **Precedential status:** Unpublished - **Opinion:** Opinion by Carol Sharpe - **Cited by:** 0 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/11098347 ## Opinion text 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 [* 3] 3 of 5 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11098347. Public record. Not legal advice.