Background
Crossbay Associates, LLC owns real property in Queens adjacent to a parcel owned by the Singh defendants. In November 2018, AT-SAF, Inc. — a general contractor allegedly owned by the Singhs — performed excavation work on the neighboring parcel without installing any shoring or support structure. A portion of Crossbay’s building collapsed. Crossbay sued the Singhs, their contractor, and related parties for negligence and gross negligence.
Midway through the litigation, Crossbay moved under CPLR 3025(b) to add Rizwan Abdus Salam P.E. Consulting Engineer, P.C. and its principal (collectively, Salam) as defendants. Crossbay alleged that Salam was the engineer who had provided professional services in connection with the excavation project and bore professional responsibility for the collapse. The proposed amended complaint also asserted a new strict liability cause of action against several defendants. Supreme Court, Queens County denied the motion in its entirety. Crossbay appealed.
The Court’s Holding
The Appellate Division modified the order, granting the amendment in part. The court held that Crossbay was entitled to add Salam as a defendant on its negligence and gross negligence causes of action under the liberal CPLR 3025(b) standard: leave to amend should be freely given, and Crossbay’s allegations against Salam — that the engineer was responsible for designing or overseeing work that led to the collapse — were not palpably insufficient or clearly without merit. The proposed defendants, as non-parties who had received notice through service of motion papers, could not demonstrate sufficient prejudice to defeat the amendment.
However, the court affirmed denial of the proposed new strict liability cause of action. The strict liability theory raised different legal issues and the court found the proposed allegations on that count were palpably insufficient to survive a motion to dismiss, affirming the denial as to that cause of action only.
Key Takeaways
- Under CPLR 3025(b)’s liberal standard, a property owner may amend a complaint to add the consulting engineer whose professional negligence allegedly contributed to a neighboring excavation collapse, even years into the litigation.
- Proposed defendants who are brought in mid-litigation by amendment must demonstrate actual prejudice — not merely delay — to defeat the amendment on negligence and gross negligence theories.
- New causes of action added through amendment must still survive the palpable-insufficiency standard; a strict liability theory without adequate factual support may be denied even when other theories succeed.
Why It Matters
Excavation-related building damage cases in New York often implicate multiple parties — property owners, contractors, subcontractors, and design professionals — whose roles may not become clear until discovery is underway. This decision confirms that CPLR 3025(b)’s permissive amendment standard allows plaintiffs to add newly identified responsible parties mid-case when the underlying factual basis is not palpably deficient. Real estate and construction litigators should note that engineers and design professionals supervising excavation work can be joined by amendment based on professional negligence theories, and that the strict liability theory requires more careful pleading to survive the amendment standard.