Defendants/Third-party plaintiffs, 346 West 17th Street, LLC ("346 West") and McGowan Builders, Inc. s/h/a McGowan ("McGowan"), move, pursuant to CPLR 3025(b), for an order granting them leave to amend the answer to assert a cross-claim for contractual indemnification against third-party defendant Milestone Environmental Corporation ("Milestone"), and, upon amendment of the answer, for leave to reargue a prior decision and order of Justice Marylin G. Diamond.

Plaintiff, Carlos Yovani Ramos, commenced this action (Action No. 1) for personal injuries he allegedly sustained as a result of an accident which occurred on November 27, 2007 while he was removing asbestos in the interior of a Manhattan building located on West 17th Street. Plaintiff and his co-worker, Jose Ordonez, were in an elevated basket attached to a manlift when the manlift allegedly rolled down a steep incline causing the basket to overturn and both men to fall to the ground from a height of approximately 20 feet. Plaintiff commenced this action against 346 West, the building owner, and McGowan, the construction manager, in December 2007.

In May 2008, McGowan commenced a third-party action against Topflite Contracting, LLC ("Topflite"), the asbestos removal subcontractor, and in October 2008, Topflite commenced a third-party action against plaintiff's employer, Milestone.

In March 2008, Jose Ordonez commenced an action (Action No. 2) against 346 West and Topflite under Index No. 104175/08. In June 2008, 346 West and Topflite commenced a third-party action against Ordonez's employer Milestone. Ordonez later also named McGowan as a defendant, and in January 2010 McGowan cross-claimed against Milestone in Action No. 2.

In a prior motion by Ramos in Action No. 1, plaintiff sought partial summary judgment on his Labor Law § 240[1] claim, and defendants, 346 West and McGowan, cross-moved for summary judgment dismissing plaintiff's Labor Law §§ 241[6] and 200, and common law negligence claims. The Court (Justice Marylin G. Diamond) granted plaintiff's motion for partial summary judgment on his Labor Law § 240[1] claim, and granted defendants' cross-[*2]motion for summary judgment to the extent of dismissing plaintiff's Labor Law § 200 and common law negligence claims. Justice Diamond further found that even though "only Topflite has asserted a third-party claim against Milestone, the defendants, as well as Topflite, also seek summary judgment against Milestone for contractual indemnification" (Moving Papers, Ex. K). Justice Diamond granted Topflite's cross-motion for summary judgment on its third-party claim against Milestone for contractual indemnification.

In Action No. 1, 346 West and McGowan now move for leave to amend the answer to assert a cross-claim against Milestone for contractual indemnification. For support, defendants provide the contract between Topflite and Milestone wherein paragraph 4.6.1 provides that Milestone "shall indemnify and hold harmless the Owner, Contractor and his successors and assigns ... from any and all liabilities of any kind ... arising out of or in connection with all or any part of the Work and performance of the Subcontractor" (Moving Papers, Ex. L). Also, Milestone agreed to obtain commercial general liability insurance naming 346 West and McGowan as additional insureds (Moving Papers, Ex. L, Rider B).

Defendants also point out that Milestone would not be unduly prejudiced or surprised by the cross-claim because Milestone was aware of its contractual obligations under its contract with Topflite. Further, 346 West had already brought a third-party action against Milestone in Action No. 2, the Ordonez action, which was consolidated with this action for discovery and trial. Lastly, the parties had been proceeding as though 346 West and McGowan had asserted cross-claims against Milestone for contractual indemnification. Indeed, 346 West and McGowan sought summary judgment for contractual indemnification in its prior motion before Justice Diamond, and Milestone opposed that branch of the motion without raising the issue that defendants had made no such cross-claim.

Leave to amend the answer is freely given absent prejudice or surprise (Peach Parking Corp. V 346 West 40th Street, LLC, 42 AD3d 82 [1st Dept 2007]). Further, in the absence of prejudice, mere delay in seeking leave to amend the answer does not bar amendment (Schiavone v Victory Memorial Hospital, 300 AD2d 294 [2nd Dept 2002]).

Here, Milestone cannot claim prejudice or surprise given that 346 West asserted a third-party action, and McGowan asserted a cross-claim, seeking contractual indemnification against Milestone in Action No. 2 (Moving Papers, Exs. G and J). Furthermore, in 346 West's and McGowan's prior motion in Action No. 1, Milestone asserted opposition to the branch seeking contractual indemnification without raising the issue that 346 West and McGowan had not asserted a cross-claim (Moving Papers, Ex. N). Also, Milestone's argument that section 6.4.1 contains [*3]no language obligating it to indemnify McGowan as a "construction manager" is unavailing. The language of section 6.4.1 provides that the subcontractor will indemnify "the Owner, Contractor and his successors and assigns, Architect, Architect's consultants and agents and employees of any of them free from any and all liabilities" (Moving Papers, Ex. E). Based on this language, the issue arises as to whether McGowan can be considered an agent of 346 West. In addition, pursuant to Rider B of the contract, Milestone was to obtain commercial general liability insurance naming McGowan as an additional insured. As such, the cross-claim is not palpably insufficient on its face as argued by Milestone.

Accordingly, that branch of defendants motion for leave to amend the answer to assert a cross-claim against Milestone for contractual indemnification is granted.

As for the branch of defendants' motion to reargue the decision and order of Justice Diamond, it is denied. Justice Diamond has retired, thus referral of this motion cannot be made.

Accordingly, it is

ORDERED that that branch of defendants' motion to amend the answer to assert a cross-claim for contractual indemnification against second third-party defendant Milestone is granted. Defendants are directed serve and file an amended answer within 20 days of service of a copy of this order with notice of entry thereof; and it is further

ORDERED that that branch of defendants' motion to reargue is denied.

This memorandum opinion constitutes the decision and order of the Court.

Dated: May 3, 2011

____________________________

HON. JEFFREY K. OING, J.S.C.