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A man who claims he was too embarrassed to come forward earlier with his claim of psychological injury is being allowed to amend a suit three years after expiration of the statute of limitations. Albany Supreme Court Justice Louis C. Benza accepted the explanation of the man, Anthony Fazio, and his attorney. The attorney contends he learned only recently of his client’s ongoing treatments for anxiety, depression and a psychological condition called adjustment disorder. The alleged cause was anti-Italian slurs directed at him when he was working as a construction subcontractor. “Mr. Fazio sought counseling due to the hostility he endured … and it is very plausible that he was embarrassed by admitting that he sought psychological counseling for the emotional distress he endured,” Benza wrote in Fazio Masonry Inc. v. Barry, Bette & Led Duke Inc., 196-01. The ruling is part of an action brought by Fazio Masonry against the Albany construction firm of Barry, Bette & Led Duke. The Fazio company was a subcontractor doing masonry work. Fazio Masonry filed suit on Jan. 2, 2001, blaming Barry Bette for delays in a project at the Tang Museum at Skidmore College. The Fazio company contends that Barry Bette’s mismanagement led to an eight-month delay in completing the project, costing it $542,323. Additionally, Fazio seeks damages for trade defamation, libel and slander, alleging that Barry Bette employees created a hostile environment by repeatedly making derogatory remarks about the subcontractor’s Italian heritage. Fazio, a corporate officer in Fazio Masonry, has been undergoing counseling for more than four years. Out of shame, however, he kept his attorney in the dark and it was not until recently that the lawyer learned of Fazio’s psychological injury and sought to amend the complaint. In court papers, Fazio contends that Barry Bette employees repeatedly referred to its employees in offensive ways, calling them “wops” and “guinea contractors.” An affidavit filed on behalf of Fazio says medical records will show that he “felt embarrassed by his psychological condition and that the depression he was suffering suppressed action on his part.” Barry Bette’s counsel, Timothy S. Brennan of Phelan, Burke & Scolamiero in Albany, opposed the motion to amend the complaint, claiming it was time-barred. He did not challenge Fazio’s claim that he suffers from a psychological disorder. Fazio’s attorney, Bruce S. Huttner of Donohue, Sabo, Varley & Armstrong in Albany, argued that his client’s petition to join in the suit raised no new issues of law or fact, only a new item of damages. Barry Bette objected, noting that the statute of limitations for intentional infliction of emotional distress is one year and that Fazio Masonry’s contract with the construction firm ended on Aug. 31, 2000. Normally, such a complaint would have to be lodged within one year of the date that the relationship ended. Justice Benza is allowing Fazio to proceed. He said the delay was reasonable. “Moreover, defendants cannot demonstrate surprise or prejudice as they have been fully apprised of the discriminatory allegations of plaintiff in the various complaints to date,” Benza wrote. “In addition, since discovery is not complete, defendants cannot allege any prejudice if the complaint is amended.”

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