De La Cruz v. Evers Mar. & Seaplane Base ( 2023 )

De La Cruz v Evers Mar. & Seaplane Base (2023 NY Slip Op 00630)

De La Cruz v Evers Mar. & Seaplane Base

2023 NY Slip Op 00630

Decided on February 07, 2023

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided and Entered: February 07, 2023
Before: Renwick, J.P., Gesmer, Moulton, Kennedy, Mendez, JJ.

Index No. 32797/20 Appeal No. 17250 Case No. 2022-02738

[*1]Yocaira De La Cruz, Plaintiff-Respondent,

v

Evers Marina and Seaplane Base et al., Defendants-Appellants, C & H Marine Services, Inc., et al., Defendants.

Cipriani & Werner, P.C., Syosset (Catherine R. Everett of counsel), for appellants.

Pollack, Pollack, Isaac & DeCicco, LLP, New York (Brian J. Isaac of counsel), for respondent.

Order, Supreme Court, Bronx County (Alison Y. Tuitt, J.), entered November 30, 2021, which, to the extent appealed from as limited by the briefs, denied defendants' CPLR 3211(a) (7) motion to dismiss the complaint and granted plaintiff's motion to supplement the summons and amend the complaint and to extend her time to serve the amended complaint, unanimously affirmed, without costs.

Plaintiff claims she was injured while riding a jet ski at defendants' marina and that the accident was the result of their failure to safely secure their property. Accepting the facts as alleged in the complaint as true (see Leon v Martinez, 84 NY2d 83, 87-88 [1994]), the motion court correctly denied defendants' CPLR 3211(a) (7) motion to dismiss, as the complaint adequately pleads a claim sounding in negligence (see e.g. Lowenstern v Sherman Sq. Realty Corp., 143 AD3d 562, 562 [1st Dept 2016]). The court also providently exercised its discretion in granting plaintiff leave to amend the complaint (CPLR 3025[b]; see generally Kimso Apts., LLC v Gandhi, 24 NY3d 403, 411 [2014]) to assert a claim under Navigation Law § 73-a(1)(e) that defendants improperly permitted individuals to launch boats from the marina after sunset.

We have considered defendants' remaining arguments, including that plaintiff was not entitled to an extension of time to serve the amended complaint, and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: February 7, 2023