theCPLRblog

The 4401 and 3025

CPLR  R. 4401 Motion for judgment during trial

CPLR R 3025 Amended and supplemental pleadings

Pitre v City of New York, 2012 NY Slip Op 00946 (2nd Dept., 2012)

The plaintiffs did not identify in their complaint or verified bill of particulars the specific sections of the Industrial Code relied upon in opposition to the defendants' motions. Additionally, the plaintiffs did not move to amend their pleadings pursuant to CPLR 3025(b) or (c). Nearly 10 years elapsed from the time the plaintiffs served their verified bill of particulars until they sought at trial to rely upon the contested Industrial Code sections, and the plaintiffs offered no explanation as to why they had not earlier moved to amend their pleadings. Under these circumstances, the Supreme Court properly granted the defendants' motions pursuant to CPLR 4401 for judgment as a matter of law dismissing the plaintiffs' Labor Law § 241(6) cause of action (see Owen v Commercial Sites, 284 AD2d 315; Smith [*2]v Hercules Constr. Corp., 274 AD2d 467, 468).

 

Late Amendment

CPLR R 3025 Amended and supplemental pleadings
(c) Amendment to conform to the evidence.

Panasia Estate, Inc. v Broche, 2011 NY Slip Op 07922 (1st Dept., 2011)

Although motions for leave to amend may be granted on the eve of trial (see CPLR 3025[c]; Reyes v City of New York, 63 AD3d 615, 616 [2009], lv denied 13 NY3d 710 [2009]), the motion court properly denied plaintiff's motion because defendants would be unduly prejudiced by the proposed amendment, which seeks to add a new theory of liability (see Spence v Bear Stearns & Co., 264 AD2d 601 [1999]). The record reveals that discovery, which had been tailored to the theories of liability set forth in the second amended complaint, was nearly complete and the filing date of the note of issue was imminent (see Chichilnisky v Trustees of Columbia Univ. in City of N.Y., 49 AD3d 388 [2008]). Plaintiff sought this amendment 18 months after the action was commenced, after it had amended its complaint twice, and after it and defendants had submitted motions for summary judgment that Supreme Court had resolved (see Heller v Louis Provenzano, Inc., 303 AD2d 20 [2003]).

Furthermore, the proposed amendment, wherein plaintiff seeks specific performance of an oral modification of the parties' contract, is lacking in merit (see e.g. Eighth Ave. Garage Corp. v H.K.L. Realty Corp., 60 AD3d 404, 405 [2009], lv dismissed 12 NY3d 880 [2009]). Plaintiff's conduct, as alleged in the proposed third amended complaint, does not unequivocally refer to the purported oral modification, and thus does not fall within the partial performance exception to General Obligations Law § 5-703(4) (see Messner Vetere Berger McNamee Schmetterer Euro RSCG v Aegis Group, 93 NY2d 229, 235 [1999]).

Weingarten v S & R Medallion Corp., 2011 NY Slip Op 06655 (1st Dept., 2011)

The court providently exercised its discretion in denying plaintiff's motion. The proposed allegation of a "tacit" modification of the parties' written agreement, which required modifications to be in writing, is clearly devoid of merit (see Bishop v Maurer, 83 AD3d 483, 485 [2011]). Plaintiff denies that there was any oral modification of the written agreement, and he makes no allegations to support a claim of modification based upon conduct. With respect to the remaining proposed allegations, plaintiff asserts that they merely clarify the existing pleading. Accordingly, the court properly determined that they may be proved at trial and, if necessary, the pleadings can be amended to conform to the proof.

3025 and 2106

CPLR R. 3025

CPLR R. 2106

Schwartz v Sayah, 2011 NY Slip Op 03227 (App. Div., 2nd 2011)

Leave to amend pleadings should be freely granted (see CPLR 3025[b]; Thomas Crimmins Contr. Co. v City of New York, 74 NY2d 166, 170) in the absence of prejudice or surprise resulting from the delay (see Hartford Cas. Ins. Co. v Vengroff Williams & Assoc., 306 AD2d 435, 436). Moreover, where the motion is made during trial, as here, the court's discretion in deciding the motion for leave to amend should be discrete, circumspect, prudent, and cautious (see Alrose Oceanside, LLC v Mueller, 81 AD3d 574; Morris v Queens Long Is. Med. Group, P.C., 49 AD3d 827, 828). Leave to amend should not be granted where the proposed amendment is palpably insufficient as a matter of law or is totally devoid of merit (see Jenal v Brown, 80 AD3d 727; Morton v Brookhaven Mem. Hosp., 32 AD3d 381).

In this case, given the appellant's extensive and unexcused delay in seeking leave to amend, the obvious prejudice which the amendment would create in delaying the trial and confusing the proceedings with collateral issues, and the totally meritless nature of the proposed counterclaim given the absence of allegations regarding an intent to deceive on the part of the plaintiff and damages suffered by the appellant (see generally Moormann v Perini & Hoerger, 65 AD3d 1106, 1108; Boglia v Greenberg, 63 AD3d 973, 975; Pui Sang Lai v Shuk Yim Lau, 50 AD3d 758, 759), the Supreme Court properly denied the motion for leave to amend (see Jenal v Brown, 80 AD3d 727; Tarantini v Russo Realty Corp., 273 AD2d 458, 459; County of Suffolk v Caccavalla, 227 AD2d 511, 513). We note in this regard that the submission by the appellant, an attorney, of an affirmation rather than an affidavit in support of the motion was improper (see CPLR 2106), and that document should have been disregarded because it was not in admissible form (see Matter of Nazario v Ciafone, 65 AD3d 1240, 1241; Lessoff v 26 Ct St. Asso.s., LLC, 58 AD3d 610, 611; Finger v Saal, 56 AD3d 606, 607; Pisacreta v Minniti, 265 AD2d 540).

CPLR R. 3025(c): Amend the pleadings to conform to the facts

CPLR R. 3025(c)

Rodriguez v Panjo, 2011 NY Slip Op 01259 (App. Div., 2nd 2011)

In August 2009 the plaintiff moved pursuant to CPLR 3025(c) for leave to amend the complaint to conform to the evidence, and the defendants moved for summary judgment dismissing the complaint. In the order appealed from, the Supreme Court denied the plaintiff's motion and granted the defendants' motion. We reverse.

"Leave to conform a pleading to the proof pursuant to CPLR 3025(c) should be freely granted absent prejudice or surprise resulting from the delay" (Alomia v New York City Tr. Auth., 292 AD2d 403, 406; see Worthen-Caldwell v Special Touch Home Care Serv., Inc., 78 AD3d 822). Mere lateness is not a barrier to amendment, but it will preclude amendment if it is coupled with significant prejudice to the other side (Worthen-Caldwell v Special Touch Home Care Serv., Inc., 78 AD3d at 822). Here, the Supreme Court improvidently exercised its discretion by denying the plaintiff's motion for leave to amend the complaint to conform to the evidence as Panjo, having himself been involved in the accident and having spoken to Estaban at the scene, was fully aware of the facts and that the accident involved three vehicles, not two vehicles as originally alleged in the complaint. Furthermore, the details of how the accident occurred, the number of vehicles involved, the make and year of the vehicle which hit the plaintiff's vehicle, and who operated the vehicles, were fully explored at Panjo's deposition. Accordingly, the defendants would not have suffered surprise or prejudice by an amendment of the complaint to conform to the evidence (see Rizzo v Kay, 79 AD3d 1001; Alomia v New York City Tr. Auth., 292 AD2d at 406).

Wu-Tang and CPLR 3025

CPLR R. 3025 Amended and supplemental pleadings

Coles v Wu-Tang Prods., Inc., 2011 NY Slip Op 00789 (App. Div., 1st 2011)

The record supports the trial court's determination that plaintiff, as a lyricist of the compositions, and defendant Diggs, as a producer of the music, regarded themselves as joint authors sharing equally in the ownership of a joint work (see Childress v Taylor, 945 F2d 500, 508 [2d Cir 1991]). The court properly granted plaintiff leave to conform the complaint to the evidence presented at trial by adding a claim against Diggs for his unauthorized receipt of a 50% producer's fee (see CPLR 3025[c]; Gonfiantini v Zino, 184 AD2d 368, 369-370 [1992]).

The bold is mine

CPLR R. 3025(b): Amendment on the eve.

I know someone is researching this issue right now. You're welcome.  I really could have used this case a few weeks ago. 

CPLR R 3025 Amended and supplemental pleadings

Alrose Oceanside, LLC v Mueller, 2011 NY Slip Op 00631 (App. Div., 2nd 2011)

Additionally, the Supreme Court providently exercised its discretion in denying that branch of the plaintiffs' motion which was for leave to amend the complaint to add a cause of action on behalf of Alrose based on concerted action liability insofar as asserted against the infant defendant. "Although leave to amend a pleading shall be freely given' in the absence of surprise or prejudice, the determination whether to grant such leave is within the court's discretion, and the [*2]exercise of that discretion will not be lightly disturbed" (Comsewogue Union Free School Dist. v Allied-Trent Roofing Sys., Inc., 15 AD3d 523, 524, quoting CPLR 3025[b]; see Fischer v RWSP Realty, LLC, 53 AD3d 595, 596). "[W]here the application for leave to amend is made long after the action has been certified for trial, judicial discretion in allowing such amendments should be discrete, circumspect, prudent, and cautious'" (Morris v Queens Long Is. Med. Group, P.C., 49 AD3d 827, 828, quoting Clarkin v Staten Is. Univ. Hosp., 242 AD2d 552, 552). "Moreover, when . . . leave is sought on the eve of trial, judicial discretion should be exercised sparingly" (Morris v Queens Long Is. Med. Group, P.C., 49 AD3d at 828; see American Cleaners, Inc. v American Intl. Specialty Lines Ins. Co., 68 AD3d 792; Comsewogue Union Free School Dist. v Allied-Trent Roofing Sys., Inc., 15 AD3d at 525). In light of Alrose's delay in moving for leave to amend its complaint to add a cause of action based on concerted action liability insofar as asserted against the infant defendant, and in light of the failure of Alrose to set forth a reasonable excuse for the delay in seeking such relief, we discern no reason to disturb the Supreme Court's determination on this issue (see American Cleaners, Inc. v American Intl. Specialty Lines Ins. Co., 68 AD3d 792; Sampson v Contillo, 55 AD3d 591; Fischer v RWSP Realty, LLC, 53 AD3d at 596-597; Cohen v Ho, 38 AD3d 705, 706; Comsewogue Union Free School Dist. v Allied-Trent Roofing Sys., Inc., 15 AD3d at 525).

Green v New York City Hous. Auth., 2011 NY Slip Op 01436 (App. Div., 2nd 2011)

While leave to amend a bill of particulars is ordinarily to be freely given in the absence of prejudice or surprise (see CPLR 3025[b]), when leave is sought on the eve of trial, judicial discretion should be exercised sparingly (see Torres v Education Alliance, 300 AD2d 469, 470; Danne v Otis El. Corp., 276 AD2d 581, 582; Reape v City of New York, 272 AD2d 533). Furthermore, where there has been an inordinate delay in seeking leave to amend to include a new injury, the plaintiff must establish a reasonable excuse for the delay and submit an affidavit to establish the merits of the proposed amendment (see Itzkowitz v King Kullen Grocery Co., Inc., 22 AD3d 636, 637; Fuentes v City of New York, 3 AD3d 549, 550; Smith v Plaza Transp. Ambulance Serv., 243 AD2d 555). The plaintiffs failed to establish a reasonable excuse for the delay. Further, the purported affirmation of the plaintiffs' expert physician submitted with the purpose of demonstrating that the "post concussion syndrome and neuropsychological impairment secondary to cerebral dysfunction" were causally linked to the infant plaintiff's accident "provided no data to indicate the basis [for the physician's] conclusion [and] was therefore speculative, conclusory, and lacking in probative value" (Paladino v Time Warner Cable of N.Y. City, 16 AD3d 646, 648; see Itzkowitz v King Kullen Grocery Co., Inc., 22 AD3d at 637; Youthkins v Cascio, 298 AD2d 386, affd 99 NY2d 638; Smith v Plaza Transp. Ambulance Serv., 243 AD2d 555).

The bold is mine.

 

CPLR R. 3025

This really isn't groundbreaking, but I was looking for a case on this issue the other week and couldn't find a recent one.  So I'll just leave this here.

CPLR R 3025 Amended and supplemental pleadings

Jenal v Brown, 2011 NY Slip Op 00487 (App. Div. 2nd, 2011)

While leave to serve an amended pleading should be freely given upon such terms as are just (see CPLR 3025[b]; Edenwald Contr. Co. v City of New York, 60 NY2d 957; AYW Networks v Teleport Communications Group, 309 AD2d 724; Charleson v City of Long Beach, 297 AD2d 777; Holchendler v We Transp., 292 AD2d 568), leave should not be granted where "the proposed amendment is palpably insufficient as a matter of law or is totally devoid of merit" (Morton v Brookhaven Mem. Hosp., 32 AD3d 381, 381; see Thone v Crown Equip. Corp., 27 AD3d 723). Here, the proposed amendment was clearly without merit as the plaintiffs' motion was made nearly one year after the statute of limitations had expired, and there was no basis in the record to support a claim that the Town of Babylon should be estopped from relying upon the expiration of the statute of limitations (see Luka v New York City Tr. Auth., 100 AD2d 323, 325, affd 63 NY2d 667; Yassin v Sarabu, 284 AD2d 531; Nowinski v City of New York, 189 AD2d 674, 675). 

found another

Schroeder v Good Samaritan Hosp., 2011 NY Slip Op 00500 (App. Div., 2nd 2011)

Where, as here, a summons and complaint are timely filed but not served, service of a substantively similar amended summons and complaint without leave of court under the same index number is proper when it is served "before the period for responding to the original complaint has expired" (see O'Keefe v Baiettie, 72 AD3d 916, 917, citing CPLR 3025[a]). Thus, the Supreme Court obtained personal jurisdiction over the defendants because they were served with substantively similar amended pleadings during the 120-day period when service of the original pleadings was required under CPLR 306-b (see O'Keefe v Baiettie, 72 AD3d 916). Moreover, under the circumstances, the action was timely commenced as against the defendants.

The bold is mine.

CPLR R. 3025

CPLR R. 3025 Amended and supplemental pleadings
(b) Amendments and supplemental pleadings by leave

Giunta's Meat Farms, Inc. v Pina Constr. Corp.

Generally, leave to amend a pleading pursuant to CPLR 3025(b) should be freely granted in the absence of prejudice or surprise resulting directly from the delay in seeking leave (see Rosicki, Rosicki & Assoc., P.C. v Cochems, 59 AD3d 512; Janssen v Incorporated Vil. of Rockville Ctr., 59 AD3d 15, 27; Bennett v Long Is. Jewish Med. Ctr., 51 AD3d 959; Lucido v Mancuso, 49 AD3d 220, 222, 227). Furthermore, a court should not examine the merits or legal sufficiency of the proposed amendment unless it is palpably insufficient or patently devoid of merit on its face (see Rosicki, Rosicki & Assoc., P.C. v Cochems, 59 AD3d at 514; Lucido v Mancuso, 49 AD3d at 227). 

Stuff I meant to post but didn't feel like it at the time.

 

Bonik v Tarrabocchia, 2010 NY Slip Op 07878 (App. Div., 2nd 2010)

The plaintiff failed to rebut the defendant's sworn statement that he never received a copy of the order entered July 1, 2004, which, inter alia, scheduled a conference for September 29, 2004. The assertion of the plaintiff's attorney that she personally served that order upon the then- pro se defendant was not supported by a proper affidavit of service or other proof of service (see Lambert v Schreiber, 69 AD3d 904). A written statement prepared by the plaintiff's attorney on August 4, 2004, was neither sworn to before a notary public nor subscribed and affirmed to be true under the penalties of perjury and, thus, did not constitute competent evidence of service (see CPLR 2106; Moore v Tappen, 242 AD2d 526). Without notice of the conference, the defendant's "default" was a nullity, as was the remedy imposed by the Supreme Court as a consequence (see CPLR 5015[a][4]; Pelaez v Westchester Med. Ctr., 15 AD3d 375, 376; Tragni v Tragni, 21 AD3d 1084, 1085; cf. Hwang v Tam, 72 AD3d 741, 742). In this situation, vacatur of the default is required as a matter of law and due process, and no showing of a potentially meritorious defense is required (see Pelaez v Westchester Med. Ctr., 15 AD3d at 376; Kumer v Passafiume, 258 AD2d 625, 626). Consequently, the subsequent inquest, the judgment entered March 21, 2006, and the order dated July 16, 2007, were all nullities, and must be vacated. In addition, there was no competent proof that the plaintiff served the defendant with notice of the inquest, a copy of the judgment entered March 22, 2006, with notice of entry, or a copy of the order entered July 20, 2007, with notice of entry.

Rizzo v Kay, 2010 NY Slip Op 09493 (App. Div., 2nd 2010)

Furthermore, under the circumstances of this case, it was not error for the trial court to allow testimony on the issue of whether the appellant abandoned treatment of the plaintiff before fully completing her dental work, and, in effect, to conform the pleadings to the proof adduced at trial by submitting a claim of abandonment to the jury. "A trial court generally has broad discretion to deem the pleadings amended to conform to the evidence presented at the [trial], even absent a motion by a party, provided [that] there is no significant prejudice or surprise to the party opposing the amendment" (Matter of Allstate Ins. Co. v Joseph, 35 AD3d 730, 731; see CPLR 3025[c]; A-1 Check Cashing Serv. v Goodman, 148 AD2d 482). Here, the appellant was not prejudiced or surprised by the admission of evidence on the issue of abandonment and the submission of this issue to the jury, since the issue was explored, and relevant evidence obtained, during discovery (see Alomia v New York City Tr. Auth., 292 AD2d 403, 406; Diaz v New York City Health & Hosps. Corp., 289 AD2d 365, 366).

It was also proper for the trial court to dismiss the appellant's cross claim against the defendant Joseph Maniscalco. The plaintiff failed to present any expert evidence that Dr. Maniscalco departed from good and accepted standards of dental practice, and therefore agreed to withdraw her dental malpractice claim against Dr. Maniscalco at the close of her case. While the appellant opposed Dr. Maniscalco's motion to dismiss the cross claim against him upon the ground that there was a factual dispute as to whether Dr. Maniscalco was an independent contractor who could be held liable for his own acts of malpractice, the appellant's expert witness disclosure statement failed to identify any departures from good and accepted standards of dental practice which Dr. Maniscalco may have committed. Under these circumstances, the trial court providently exercised its discretion in ruling that the appellant would be precluded from offering expert testimony as to whether Dr. Maniscalco committed any acts of dental malpractice (see CPLR 3101[d][1][i]; Lucian v Schwartz, 55 AD3d 687, 688; Parlante v Cavallero, 73 AD3d 1001; Schwartzberg v Kingsbridge Hgts. Care Ctr., Inc., 28 AD3d 463, 464), and in concluding that absent such expert testimony, the appellant could not establish a prima facie case of dental malpractice against Dr. Maniscalco, and therefore could not prevail upon his cross claim (see Perricone-Bernovich v Gentle Dental, 60 AD3d 744, 745; Sohn v Sand, 180 AD2d 789, 790.

Comice v Justin's Rest., 2010 NY Slip Op 07884 (App. Div., 2nd 2010)

The Supreme Court properly denied that branch of the plaintiff's motion which was pursuant to CPLR 1003 for leave to amend the summons and complaint to add Andre Suite as a defendant. The statute of limitations expired and the plaintiff failed to demonstrate that the relation-back doctrine was applicable (see CPLR 203[f]; Buran v Coupal, 87 NY2d 173). In order for claims asserted against a new defendant to relate back to the date the claims were filed against an original defendant, the plaintiff must establish, inter alia, that the new party knew or should have known that, but for a mistake by the plaintiff as to the identity of the proper parties, the action would have been brought against that party as well (see Buran v Coupal, 87 NY2d at 178; Arsell v Mass One LLC, 73 AD3d 668, 669; Boodoo v Albee Dental Care, 67 AD3d 717, 718). Here, the plaintiff failed to establish that Suite knew or should have known that, but for a mistake as to the identity of the proper parties, this action would have been brought against him as well (see Boodoo v Albee Dental Care, 67 AD3d at 718; Marino v Westchester Med. Group, P.C., 50 AD3d 861; Yovane v White Plains Hosp. Ctr., 228 AD2d 436, 437; see also Bumpus v New York City Tr. Auth., 66 AD3d 26, 34-35).

Furthermore, the Supreme Court properly denied that branch of the plaintiff's motion which was, in effect, pursuant to CPLR 1024 to name Andre Suite as a defendant in lieu of "John Doe." In order to employ the procedural mechanism made available by CPLR 1024, a plaintiff must show that he or she made timely efforts to identify the correct party before the statute of limitations expired (see Bumpus v New York City Tr. Auth., 66 AD3d at 29-30; Harris v North Shore Univ. Hosp. at Syosset, 16 AD3d 549, 550; Justin v Orshan, 14 AD3d 492, 492-493; Scoma v Doe, 2 AD3d 432, 433; Porter v Kingsbrook OB/GYN Assoc., 209 AD2d 497). Here, the plaintiff failed to make such a showing. 

Sanchez v Avuben Realty LLC, 2010 NY Slip Op 08780 (App. Div., 1st 2010)

An application brought pursuant to CPLR 5015 to be relieved from a judgment or order entered on default requires a showing of a reasonable excuse and legal merit to the defense asserted (see Crespo v A.D.A. Mgt., 292 AD2d 5, 9 [2002]). While the failure to keep a current address with the Secretary of State is generally not a reasonable excuse for default under CPLR 5015(a)(1) (id. at 9-10), where a court finds that a defendant failed to "personally receive notice of the summons in time to defend and has a meritorious defense," relief from a default may be permitted (CPLR 317; see Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 142 [1986]).

Here, notwithstanding the Secretary of State's maintenance of the wrong corporate address, the evidence of record demonstrates that defendant did receive notice of the summons in time to interpose a defense, and inexplicably failed to do so. It is undisputed that six months after the complaint's filing, counsel for defendant's insurer contacted plaintiff's counsel to discuss settlement, at which time he was informed of the then-pending motion for default judgment. The very fact that settlement options were discussed at this time evidences that defendant was aware of plaintiff's action. Moreover, vacatur of a default judgment is not warranted merely because the default was occasioned by lapses on the part of an insurance carrier (see Klein v Actors & Directors Lab, 95 AD2d 757 [1983], lv dismissed 60 NY2d 559 [1983];Lemberger v Congregation Yetev Lev D'Satmar, Inc., 33 AD3d 671, 672 [2006]). The evidence of record also indicates that five months after filing of the summons and complaint, copies thereof were delivered to an undisputably valid address for defendant, as was notice of entry of the Supreme Court's March 26, 2007 order granting plaintiff's motion for default judgment and [*2]noticing an inquest as to damages. Still defendant took no action until approximately two-and-a-half years after the complaint's filing, when plaintiff attempted to collect on the Supreme Court's judgment.

Defendant failed to establish entitlement to vacatur of the default judgment under CPLR 5015(a)(3) due to an alleged fraud perpetrated by plaintiff in support of his complaint, as the affidavit it submitted in support of this claim was both conclusory and recounted hearsay.

Gibbs v St. Barnabas Hosp., 2010 NY Slip Op 09198 (Ct. App. 2010)

Under CPLR 3042 (d), a court may invoke the relief set forth in CPLR 3126 when a "party served with a demand for a bill of particulars willfully fails to provide particulars which the court finds ought to have been provided pursuant to this rule." CPLR 3126, in turn, governs discovery penalties and applies where a party "refuses to obey an order for disclosure or wilfully fails to disclose information which the court finds ought to have been disclosed." The statute contains a list of nonexclusive sanctions and further permits courts to fashion orders "as are just." CPLR 3126 therefore broadly empowers a trial court to craft a conditional order — an order "that grants the motion and imposes the sanction 'unless' within a specified time the resisting party submits to the disclosure" (Connors, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C3126:10 ["The conditional order is in fact the most popular disposition under CPLR 3126"]; see also CPLR 3042 [d]).

The situation that developed in this case is, unfortunately, a scenario that we have seen before. In Fiore v Galang (64 NY2d 999 [1985], affg 105 AD2d 970 [3d Dept 1984]), a medical malpractice action, the trial court granted a 30-day conditional order of preclusion directing plaintiffs to serve a bill of particulars on the defendant hospital. Following plaintiffs' lack of compliance with the order, the hospital moved for summary judgment dismissing the complaint. The trial court denied the motion on the condition that plaintiffs serve a bill of particulars and pay $415 to the hospital's attorneys ^[FN3]. On appeal, the Appellate Division reversed and dismissed the complaint, concluding that the trial court erred in excusing the default without requiring plaintiff to offer both a reasonable excuse and an affidavit of merit. We affirmed, explaining that "absent an affidavit of merits it was error, as a matter of law, not to grant defendant Hospital's motion for summary judgment" (id. at 1000 [emphasis added]).

***

In reaching this conclusion, we reiterate that "[l]itigation cannot be conducted efficiently if deadlines are not taken seriously, and we make clear again, as we have several times before, that disregard of deadlines should not and will not be tolerated" (Andrea v Arnone, Hedin, Casker, Kennedy & Drake, Architects & Landscape Architects, P.C. [Habiterra Assoc.], 5 NY3d 514, 521 [2005]; see also Wilson v Galicia Contr. & Restoration Corp., 10 NY3d 827, 830 [2008]; Miceli v State Farm Mut. Auto. Ins. Co., 3 NY3d 725, 726-727 [2004]; Brill, 2 NY3d at 652-653; Kihl, 94 NY2d at 123).

 

 

 

Conform pleading to the proof. CPLR R. 3025(c)

CPLR R. 3025(c)

Worthen-Caldwell v Special Touch Home Care Servs., Inc., 2010 NY Slip Op 08096 (App. Div., 2nd 2010)

" Leave to conform a pleading to the proof pursuant to CPLR 3025(c) should be freely granted absent prejudice or surprise resulting from the delay'" (Bryant v Broadcast Music, Inc., 60 AD3d 799, 800, quoting Alomia v New York City Tr. Auth., 292 AD2d 403, 406). The determination whether to grant such leave is within the court's discretion, and the exercise of that discretion will not be lightly disturbed (see Surgical Design Corp. v Correa, 31 AD3d 744, 745; Comsewogue Union Free School Dist. v Allied-Trent Roofing Sys., Inc., 15 AD3d 523, 524; Leonardi v City of New York, 294 AD2d 408, 409; Castagne v Barouh, 249 AD2d 257, 257-258). In determining whether a motion for leave to conform should be granted, the court " should consider how long the party seeking the amendment was aware of the facts upon which the motion was predicated, whether a reasonable excuse for the delay was offered, and whether prejudice resulted therefrom'" (American Cleaners, Inc. v American Intl. Specialty Lines Ins. Co., 68 AD3d 792, 794, quoting Cohen v Ho, 38 AD3d 705, 706; see Rose v Velletri, 202 AD2d 566, 567; Rothstein v City Univ. of N.Y., 194 AD2d 533). " Mere lateness is not a barrier to the amendment. It must be lateness coupled with significant prejudice to the other side, the very elements of the laches doctrine'" (Edenwald Contr. Co. v City of New York, 60 NY2d 957, 959, quoting Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR 3025:5, at 477 [1974 ed]; see Abrahamian v Tak Chan, 33 AD3d 947, 949; Sievert v Morlef Holding Co., 220 AD2d 403; Evans v Kringstein, 193 AD2d 714).

Here, the Supreme Court, after weighing these considerations, permitted the plaintiff to conform her pleadings to the proof by adding a claim under the New York City Human Rights Law, but accepted the defendants' principal argument that they would be prejudiced by the resultant availability of punitive damages, and therefore disallowed any punitive damages claim. In doing so, the Supreme Court did not improvidently exercise its discretion (see 715 Ocean Parkway Owners Corp. v Klagsbrun, 74 AD3d 1314; Bryant v Broadcast Music, Inc., 60 AD3d 799; RCLA, LLC v 50-09 Realty, LLC, 48 AD3d 538, 539; Pansini Stone Setting, Inc. v Crow & Sutton Assoc., Inc., 46 AD3d 784, 786; Dinizio & Cook, Inc. v Duck Cr. Mar. at Three Mile Harbor, Ltd., 32 AD3d 989, 990).