CPLR R. 3025 Amended and supplemental pleadings
(b) Amendments and supplemental pleadings by leave
Reyes v City of New York, 2009 NY Slip Op 05267 (App. Div., 1st, 2009)
The trial court providently exercised its discretion in granting plaintiff leave to amend her pleadings on the eve of trial to allege prior written notice, where such amendment did not prejudice or surprise defendant (CPLR 3025[b]; see Edenwald Contr. Co. v City of New York, 60 NY2d 957, 959 [1983]; Mezzacappa Bros., Inc v City of New York, 29 AD3d 494 [2006], lv denied 7 NY3d 712 [2006]). Plaintiff alleged actual notice in her initial pleadings, and based on the service of a notice to admit attaching the Big Apple Map and receipt of the map by the Department of Transportation, defendant was aware at least five years prior to trial that plaintiff [*2]intended to rely upon prior written notice.
ADA Dining Corp. v 208 E. 58th St., LLC, 2009 NY Slip Op 05173 (App. Div., 1st, 2009)
The court exercised its discretion in a provident manner in granting the cross motion to amend the complaint (CPLR 3025[b]), and in declining to dismiss said amended complaint as materially different from the proposed amended complaint inasmuch as the new claims had merit and were properly pleaded (see Thomas Crimmins Contr. Co. v City of New York, 74 NY2d 166, 170 [1989]; Peach Parking Corp. v 346 W. 40th St., LLC, 42 AD3d 82, 86 [2007]). There was no surprise since the court had not only discussed the issue of accord and satisfaction in its decision, but the amended complaint was in accordance with the June 3, 2008 order, which specifically permitted plaintiffs to include the allegations contained in the discontinued Florida action.
Furthermore, the allegations of accord and satisfaction sufficiently pleaded the existence of a written and signed accord (General Obligations Law § 15-501[2]), based upon the August 2007 agreement which included an option to purchase the building at a set price that purportedly subsumed the claimed overdue rent (see Porthos v Arverne Houses, 269 AD2d 377 [2000] [party seeking to establish an accord and satisfaction must show a disputed claim which the parties mutually resolved through a new contract discharging all or part of prior contractual obligations]).
The bold is mine
