CARL REALE,

Plaintiff,

-vs- Index #G-11617

H.B.S.A. INDUSTRIES, INCORPORATED,

Defendant.

------------------------------------

H.B.S.A. INDUSTRIES, INCORPORATED,

Third Party Plaintiff,

-vs-

V & N CONSTRUCTION COMPANY, INC.,

Third Party Defendant.

PAUL WILLIAM BELTZ, P.C.

(Russell T. Quinlan, Esq.

of Counsel) for Plaintiff

MCGEE & GELMAN

(F. Brendan Burke, Jr.,

Esq. of Counsel) for

H.B.S.A.

KRIEGER AND GRAFFEO

(Sebastian P. Graffeo, Esq.

of Counsel) for Third Party

Defendant V & N Construction

DECISION AND ORDER

GERACE, J.

Nine years after his injury and seven years after he started this lawsuit, plaintiff seeks to amend his complaint and supplement his bill of particulars.

Although in August, 1990, and again in March 1994, he certified the case ready for trial on a §240(1) theory of a fall from a height, he now wants to add three additional theories of liability: §200 and §241 of the Labor Law, and a common law claim of failure to provide a safe workplace. He also wants to add his wife as a new party in a derivative action and increase the ad damnum clause of One Million to Eleven Millon Dollars.

After the motions were made last October, the Court and

counsel engaged in considerable negotiations that ended

with an agreement to disagree. Submissions on the motions have

been received as recently as February 8th.

MOTION TO ADD DERIVATIVE CAUSE OF ACTION

This motion is denied. The Fourth Department has held that a derivative cause of action by a party's spouse does not relate back under CPLR 203(f) to the time when the basic action was commenced. (cite page 6, def brief). The Statute of

Limitations having run, this Court cannot permit the addition of the wife as a party to this action.

MOTION TO INCREASE AD DAMNUM

This motion is denied. Neither plaintiff's calculations nor other facts would justify such an increase. The original papers did not contain a physicians affidavit showing the nature and extent of the injuries, and their relation to this case.

MOTION TO INCLUDE LABOR LAW 200, 241, COMMON LAW CLAIM

The reason and excuse for the delay in moving to

amend the complaint and file a supplemental bill of particulars this late date is obvious: plaintiff had a change of counsel, and, recent testimony of a witness has seriously weakened plaintiff's claim of a fall from a height. Not all slip and falls are covered by the "exceptional protections" of Section 240. See STAPLES V. TOWN OF AMHERST, 146 AD2d 292, (4th Dept).

In May of this year, the Court denied the motion of

plaintiff for summary judgment on the Labor Law §240 claim, without prejudice, because plaintiff's alleged fall from height of some 32" or more was apparently unwitnessed.

In August, 1994, the deposition of a witness to plaintiff's slip and fall indicated the height of the plank on which plaintiff stepped and fell was only 18" from the earth on both sides of the wall.

Plaintiff's motion for amendment is well advised in view of the recent testimony and the possibility that the 240 claim may not survive a motion to dismiss or jury verdict.

As defendants have argued, the facts underlying the

additional theories of liability were not recently discovered;

they have been known to plaintiff from the beginning. But, they have been known to defendants from the beginning, too.

While the Court will allow defendants the opportunity for

additional discovery at plaintiff's expense, there doesn't seem to be much more to be elicited than was at the original

depositions.

The motion to amend the complaint and file a supplemental

bill of particulars alleging Labor Law §200, §241 and common law negligence is granted, provided however, that plaintiff shall be responsible for out of pocket costs of witnesses and reasonable attorney fees to defendants for any additional depositions.

The Court hereby orders this case removed to the deferred

calendar pending completion of discovery.

This is the Decision and Order of the Court. No further order is necessary.

Dated: February 28, 1995

Mayville, New York

JOSEPH GERACE

Justice of Supreme Court