Panasia Estate, Inc. v Broche

Panasia Estate, Inc. v Broche 2011 NY Slip Op 07922 Decided on November 10, 2011 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on November 10, 2011
Tom, J.P., Andrias, Acosta, Freedman, Richter, JJ.
5974N 104355/09

[*1]Panasia Estate, Inc., Plaintiff-Appellant,

v

Daniel R. Broche, etc., Defendant-Respondent, Property 51 LLC, et al., Defendants.




Robinson Brog Leinwand Greene Genovese & Gluck, P.C.,
New York (Robert M. Milner of counsel), for appellant.
Andrew Weltchek, New York, for respondents.

Order, Supreme Court, New York County (Joan M. Kenney, J.), entered January 28, 2011, which denied plaintiff's motion for leave to serve a third amended complaint pursuant to CPLR 3025(b), unanimously affirmed, without costs.

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 [*2]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]).

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: NOVEMBER 10, 2011

CLERK