CPLR R. 3025 Amended and supplemental pleadings
(b) Amendments and supplemental pleadings by leave
Sanatass v Town of N. Hempstead, 2009 NY Slip Op 05955 (App. Div., 2nd, 2009)
The Supreme Court properly determined that the defendant Town of North Hempstead failed to establish its prima facie entitlement to judgment as a matter of law on the issue of whether it received prior written notice of the alleged defect (see Bonilla v Incorporated Vil. of Hempstead, 49 AD3d 788, 789; Kramer v Town of Hempstead, 284 AD2d 503, 504). Accordingly, the Supreme Court properly denied the Town's motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against it.
"Leave to amend pleadings should be freely given provided that the amendment is not palpably insufficient, does not prejudice or surprise the opposing party, and is not patently devoid of merit" (Gitlin v Chirinkin, 60 AD3d 901, 902; see Sheila Props., Inc. v A Real Good Plumber, Inc., 59 AD3d 424, 426; Boakye-Yiadom v Roosevelt Union Free School Dist., 57 AD3d 929, 931). "A determination whether to grant such leave is within the Supreme Court's broad discretion, and the exercise of that discretion will not be lightly disturbed" (Gitlin v Chirinkin, 60 AD3d at 902; see Ingrami v Rovner, 45 AD3d 806, 808). Under the circumstances presented here, the Supreme Court providently exercised its discretion in granting the plaintiff's cross motion for leave to amend her pleadings pursuant to CPLR 3025(b).
Trans-World Trading, Ltd. v North Shore Univ. Hosp. at Plainview, 2009 NY Slip Op 05958 (App. Div., 2nd, 2009)
The plaintiff commenced this action seeking, inter alia, damages for conversion against the Hospital. The cause of action to recover damages for conversion alleged that the goods allegedly converted were housed in the coffee shop. In May 2007 the plaintiff moved for leave to amend the complaint to add a cause of action against the Hospital alleging tortious interference with the plaintiff's contractual relations with the coffee shop. It also sought leave to amend the cause of action to recover damages for conversion against the Hospital to include, in addition to the goods housed in the coffee shop, goods that were purportedly stored in the Hospital basement.
A motion for leave to amend a complaint should be freely granted "unless the proposed amendment is palpably insufficient or patently devoid of merit, or where the delay in seeking the amendment would cause prejudice or surprise'" (Commissioners of State Ins. Fund v Service Unlimited, USA, Inc., 50 AD3d 1085, 1085, quoting Lucido v Mancuso, 49 AD3d 220, 222; see G.K. Alan Assoc. Inc. v Lazzari, 44 AD3d 95, 99, affd 10 NY3d 941). The Supreme Court [*2]providently exercised its discretion in denying that branch of the plaintiff's motion which was for leave to amend the cause of action to recover damages for conversion to include goods that were purportedly stored in the Hospital's basement. Although exposure to additional liability alone does not, in and of itself, amount to prejudice (see Loomis v Civetta Corinno Constr. Corp., 54 NY2d 18, 23; Commissioners of State Ins. Fund v Service Unlimited, USA, Inc., 50 AD3d at 1085), in this case, the five-year delay in seeking the amendment based upon facts that the plaintiff had known since the inception of this action caused the Hospital surprise and prejudice. The plaintiff's claim that the Hospital converted a few hundred boxes of goods stored in its basement was not discernible from the complaint. Thus, for more than five years, the Hospital proceeded on the premise that the merchandise underlying the conversion claim was housed inside the coffee shop (see Morris v Queens Long Is. Med. Group, P.C., 49 AD3d 827; cf. Schutz v Finkelstein Bruckman Wohl Most & Rothman, 247 AD2d 460, 461). Moreover, the plaintiff failed to present a reasonable excuse for the delay. In light of the prejudice, it is not necessary to address whether the proposed amendment was palpably insufficient or patently devoid of merit (see Morris v Queens Long Is. Med. Group, P.C., 49 AD3d at 829; G.K. Alan Assoc., Inc. v Lazzari, 44 AD3d at 99; Lucido v Mancuso, 49 AD3d at 222).
Under the circumstances of this case, the Supreme Court also providently exercised its discretion in denying that branch of the plaintiff's motion which was for leave to amend the complaint to add a cause of action against the Hospital alleging tortious interference with contract (see Scofield v DeGroodt, 54 AD3d 1017, 1018; Benyo v Sikorjak, 50 AD3d 1074, 1076; Lucido v Mancuso, 49 AD3d at 222; Beja v Meadowbrook Ford, 48 AD3d 495).
The bold is mine.
