B.B.C.F.D., S.A. v Bank Julius Baer & Co. Ltd.

B.B.C.F.D., S.A. v Bank Julius Baer & Co., Ltd. 2009 NY Slip Op 03622 [62 AD3d 425] May 5, 2009 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, July 1, 2009

B.B.C.F.D., S.A., et al., Plaintiffs,
v
Bank Julius Baer & Co., Ltd., et al., Respondents, and Baruch Ivcher et al., Appellants, et al., Defendants. (And Other Actions.)

—[*1] The Law Office of Joseph Yerushalmi, Great Neck (Kenneth F. Peshkin of counsel), for appellants.

Wilmer Cutler Pickering Hale and Dorr LLP, New York (Peter J. Macdonald of counsel), for Bank Julius Baer & Co., Ltd. and Raymond Baer, respondents.

Covington & Burling LLP, New York (Meghann E. Donahue of counsel), for Urs Schwytter, respondent.

Order, Supreme Court, New York County (Helen E. Freedman, J.), entered January 10, 2008, which denied defendants Baruch Ivcher's and Waxfield Limited's motion to amend their answer to include cross claims by Ivcher against defendant/cross-claim plaintiff Bank Julius Baer & Co., Ltd. and two of its officers, unanimously affirmed, with costs.

The facts underlying Ivcher's proposed cross claims have been known to him since no later than 2004, if not as long ago as late 2001. His delay until August 2007 in requesting leave to amend his answer is inexcusable (see Chichilnisky v Trustees of Columbia Univ. in City of N.Y., 49 AD3d 388, 389 [2008]; Spence v Bear Stearns & Co., 264 AD2d 601 [1999]).

Moreover, allowing the proposed amendment, which concerns events that took place no later than 1999, would significantly alter the status of this litigation by adding multiple new cross claims and a new cross-claim plaintiff, effectively resurrecting two cases that, after many years of litigation, are close to being resolved. In any event, the new cross claims are untimely (see CPLR 213 [8]), and the "relation back" provision of CPLR 203 (f) does not apply because "the original pleading does not give notice of the transactions, occurrences, or series of transactions or occurrences, to be proved pursuant to the amended pleading." [*2]

We have considered defendants' remaining arguments and find them unavailing. Concur—Tom, J.P., Andrias, Saxe, Moskowitz and DeGrasse, JJ.