Plaintiff, Defendants.

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1 SHORT FORM ORDER Present: -- --_--- -~ - --~ -~~~_~~~---~---~---- WILFRED MOSSEY, SUPREME COURT HON. JOSEPH A. DE - STATE OF NEW YORK MAR0 Justice TRIAL/IAS, PART 9 NASSAU COUNTY -against- Plaintiff, COUNTY OF NASSAU and DONNA SCHNEIDER, MOTION DATE: January 15, 2002 INDEX No. 7244/00 SEQUENCE No. 2 Defendants _ _----_ _ The following papers read on this motion: Notice of Motion and Supporting Papers Affirmation in Support Affirmation in Opposition.. Motion by plaintiff for leave to amend the complaint pursuant to CPLR 3025(b) and for an order pursuant to CPLR 3124 directing further discovery/disclosure by the defendant County, is granted to the extent herein set forth and in all other respects is denied. I Leave to amend a pleading is mandated as long as there is no real prejudice or surprise to an adversary. (CPLR 3025(b); McCaskev, Davies and Associates, Inc. v New York City- Health & Hosoitals Core., 91 AD2d 516; Pinto v House, 79 AD2d 361.) The

2 mere delay in making this motion to amend, without more, is insufficient ground for denial of the motion. (Smith v University of Rochester Medical Center, 32 AD2d 736; Yerdon v Baldwinsville Academy, 39 AD2d 824.) Here, the plaintiff seeks to add another cause of action against the defendant County based upon the theory of respondeat superior on the ground that Ms. Schneider helped defendant in the care of the dog which allegedly bit the plaintiff and allegedly bit plaintiff's dog. Frintzilas (111 Misc2d 306): As stated in General Act. v "The word 'employee' is not a word of art (30 CJS, Employee, P 672), nor is the word 'employment' (30 CJS, Employee, p 682). The word employee' does not necessarily connote the payment of compensation (30 CJS, Employee p 673) and an 'employment' may be engagemen; in services with or without expectation of compensation (30 CJS, Employment, p 683). Thus, anyone performing services is 'employed' (Smith v Murphy ) and a man who does the work of! another is 'employed' in it although he receives no wages (Antichi v New York Ind. Co Cal App 284). In sum, the employer-employee relationship does not turn upon the payment of wages (see Bertino v Euuitable Fire.& Mar. Ins. Co., 214 NYS2d 155) and the relationship may be determined on the basis of any one of a number of factors (see Matter of Pelow v Sork Enterprises, 39 AD2d 494; Matter of Bianculli v Times Sq. Stores, 34 AD2d 696; see Matter of Grigoli v Nito, 11 AD2d 581) including the element of control (see Matter of Morton, 284 NY 167; Matter of Wilson Sullivan Co., 289 NY 110). Here, Maniscalco testified that he 'helped' his brother-in-law, which is tantamount to saying that he was in the 'service' or 'employ of another' (Webster's Third International Dictionary, p 1053) and thus subject to direction and control. While the word 'employed' and 'employee' in insurance policies denotes regular employment distinguished from occasional, incidental zz. casual employment (Daub v Maryland Cas. Co., 2

3 (See also 148 SW2d 58 [MO]), under some circumstances regular employment one or two days a week is considered 'continuous employment' (Cox v Brown, 227 MO App 157). Here, Maniscalco was by his own admission not in the employ of anyone else (cf. Consolidated Mut. Ins. Co. v Security Ins. Co., 97 NJ Super 528) and he conceded he helped Rello on a regular basis two, three or four times a week. It appears that, upon the stipulated facts, Maniscalco may be deemed to have been 'employed' in as well as 'otherwise engaged in' the automobile business insofar as the definition in the Empire and Allstate policies is concerned." Sauter v New York Tribune, 305 N.Y. 442; 53 NY Jur2d 323.) The record shows at least some control over Ms. Schneider's efforts. (See 52 NY Jur2d, Sec. 4.) Since the pleadings and deposition already show that defendant County knew that Ms. Schneider was helping to care for the defendant's dog and had taken the dog out of its pen and to the golf course, defendant County cannot claim surprise or prejudice by the amendment requested. (See: Youns v Robertshaw Controls Co., 104 AD2d 84.) Although the proposed amendment sets out a new theory of recovery, it is based on the same facts. Originally pleaded and known through testimony given in an examination before trial, the amendment can be permitted. (See: Controls Co., supra; Trusthouse Forte (Garden Younq v Robertshaw Citv) Manaoement, Inc AD2d 271.) Furthermore, defendant will be entitled to-a new deposition from the plaintiff and a submission of a bill of particulars of the amended complaint which will cure any possible prejudice claimed by defendant. (See: Seidenbers v Easterman, NYLJ, 12/18/80, p. 11, col. 1 [App. Term lst Dept.]; Rife v Union Coil., 30 AD2d 504.) The policy of liberal amendment of the 3

4 complaint is recognized in this State. In the interest of justice and since the defendant is unable to show surprise or prejudice, the Court hereby authorizes plaintiff to serve within twenty (20) days of the the amended entry of this order an amended complaint setting forth cause of action based upon "respondeat superior". II This is with respect to that part of plaintiff's motion seeking an order directing the defendant, County of Nassau, to appear for a further examination by one having knowledge of the facts. A corporation has the right to select, in the first instance, the person by whom it will be examined. (See Arett Sales Corp. v Island Garden Center of Queens, Inc., 25 AD2d 546.) The defendant County has selected and produced Rich Giannoccora, the Technical Services Maintenance Superintendent, and his deposition was taken on September 17, However, the testimony given by him on said examination before trial indicated that he had inadequate knowledge of the facts material and relevant to the issues. (The Court notes that he responded at least eleven (11) times to questions: "I don't know" - pages 15, 20, 25, 28, 29, 32, 35, 53, 64, 76 and 77 of transcript of his deposition; and at other times stated I can't remember" - p. 23; or "not to my knowledge" - p. 26; or "not aware of" - p. 48.) Plaintiff is, therefore, entitled to examine a representative of said defendant who does have such knowledge. (Amos Parrish & Comoanv, Inc. v Aoolestein, 28 AD2d 979.) Defendant, County of Nassau, is directed to appear for its further examination at Special Term, Part II of this Court, 4

5 Room 05, (lower level) on March 20, 2002 at following two employees: 9:30 a.m. by the A. John Pincus, Assistant Parks Commissioner, and B. Ed Kontino, greens keeper Each of the said witnesses shall produce copies of incident reports with respect to the subject occurrences and all other relevant and material documents and records to enable them to properly and adequately testify at said deposition. Dated: February 5,