IDX Capital, LLC v Phoenix Partners Group LLC

IDX Capital, LLC v Phoenix Partners Group LLC 2010 NY Slip Op 03375 [72 AD3d 576] April 27, 2010 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, June 9, 2010

IDX Capital, LLC, et al., Respondents,
v
Phoenix Partners Group LLC, Appellant, et al., Defendants.

—[*1] John F. Bolton, New York, for appellant.

Olshan, Grundman, Frome, Rosenzweig & Wolosky LLP, New York (Herbert C. Ross of counsel), for IDX Capital, LLC, James Cawley, Helen Cawley, James Cawley, Sr., Ron Neal, Bhanu Patel and Starlight Investments, Ltd., respondents.

Graubard Miller, New York (Lawrence Bernfeld of counsel), for Brady Halper, respondent.

Order, Supreme Court, New York County (Richard B. Lowe, III, J.), entered December 2, 2008, which, to the extent appealable, granted plaintiffs' motion to further amend their pleadings and serve a second amended complaint, unanimously affirmed, with costs. Appeal from so much of that order as denied defendant Phoenix Partners Group LLC's cross motion to strike scandalous and prejudicial pleadings, unanimously dismissed, without costs.

The court's acceptance of a motion made 10 days after the deadline it had set for submission was not an abuse of discretion, and was well within its continuing jurisdiction to reconsider any prior intermediate determination it has made (see Aridas v Caserta, 41 NY2d 1059, 1061 [1977]).

The court properly permitted plaintiffs to further amend the complaint in order to amplify their pleadings against defendants. To the extent the proposed amendment merely reflected new facts uncovered during discovery that were consistent with plaintiffs' existing theories sounding in tortious interference with contract and libel, it was not devoid of merit and would not result in significant prejudice or surprise (see Saldivar v I.J. White Corp., 9 AD3d 357, 359 [2004]). Nor, in the absence of prejudice, is plaintiffs' delay in seeking to amend a second time and to add additional defendants a sufficient reason to deny the amendment (Masterwear Corp. v Bernard, 3 AD3d 305, 306 [2004]; Sheppard v Blitman/Atlas Bldg. Corp., 288 AD2d 33, 34 [2001]). [*2]

Since the denial of a motion to strike allegations pursuant to CPLR 3024 (b) is not appealable as of right, that portion of the appeal is dismissed (CPLR 5701 [b] [3]). Concur—Gonzalez, P.J., Catterson, Moskowitz, Renwick and Richter, JJ.