Aboulessan v Aboulessan

[*1] Aboulessan v Aboulessan 2005 NY Slip Op 51777(U) [9 Misc 3d 1124(A)] Decided on October 28, 2005 Supreme Court, Kings County Rivera, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on October 28, 2005
Supreme Court, Kings County

Abdul Aboulessan, Plaintiff,

against

Mohammad Aboulessan, Defendant



42040/04

Francois A. Rivera, J.

By notice of amended cross-motion filed on August 23, 2005, defendant moves pursuant to CPLR §3025 for an order granting the defendant leave to serve an amended verified answer to plaintiff's complaint. By decision dated July 29, 2005, this court denied plaintiff's order to show cause seeking summary judgment dismissing defendant's counterclaim

On December 29, 2004, plaintiff commenced this action for a permanent injunction and monetary damages by filing a summons and verified complaint against his half-brother, defendant Mohammand Aboulessan. Plaintiff claims that since April of 2004, he is the fee simple owner of real property located at 1161 Fulton Street, Brooklyn, New York (hereinafter the subject premise). He claims that since May of 1992, his half-brother was the fee simple owner of the adjoining property located at 1163 Fulton Street, Brooklyn, New York. Plaintiff claims that the roof of his brother's adjoining property encroaches upon the subject premise.

On January 27, 2005, defendant filed a verified answer containing ten allegations of fact in support of one counterclaim and two affirmative defenses. Defendant alleges that plaintiff took title to the subject premise against defendant's free will through coercive acts. He claims these acts were part of an unconscionable fraud perpetrated against him. On February 7, 2005, plaintiff served a reply to defendant's answer and counterclaim.

On June 6, 2005, defendant filed an amended verified answer containing thirty four allegations of fact. He asserts a counterclaim seeking a declaratory judgment that he is the owner of the subject premises and imposition of a constructive trust. He asserts a second counterclaim seeking the same relief on behalf of his partnership, Nadima Equities; and one affirmative defense. By letter dated June 6, 2005, plaintiff advised defendant that pursuant to CPLR 3025(a), his amended answer was untimely and a nullity. Defendant made the instant cross-motion seeking leave of the court to amend his answer.

CPLR §3025 provides that: (a) A party may amend his pleading once without leave of court within twenty days after its service, or at any time before the period for responding to it expires, or within twenty days after service of a pleading responding to it.[*2](b) A party may amend his pleading, or supplement it by setting forth additional or subsequent transactions or occurrences, at any time by leave of court or by stipulation of all parties. Leave shall be freely given upon such terms as may be just including the granting of costs and continuances

On February 7, 2005, plaintiff served a reply to defendant's answer and counterclaim. Pursuant to CPLR §3025(a) defendant had until February 27, 2005 to serve an amended answer as of right. Defendant filed an amended answer on June 6, 2005, more than three but less than four months later.

While leave to amend a pleading shall be freely given upon such terms as may be just (CPLR 3025[b]), the decision whether to grant such leave is within the court's sound discretion (Edenwald Contr. Co. v. City of New York, 60 NY2d 957, 959 [1983]; see also Haller v. Lopane, 305 AD2d 370 [2nd Dept. 2003]). The exercise of that discretion will not be lightly disturbed (see, e.g., Beuschel v. Malm, 114 AD2d 569 [3rd Dept. 1985]). 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, supra, 60 NY2d at 959; see also Arcuri v. Ramos, 7 AD3d 741 [2nd Dept. 2004]. Furthermore, a belated motion for leave to amend will be defeated by a claim of laches where two elements are present: delay, and prejudice to the nonmoving party resulting directly from the delay (see, e.g., Corsale v. Pantry Pride Supermarkets, 197 AD2d 659 [2nd Dept. 1993]). In exercising its discretion, the

court will consider how long the party seeking amendment was aware of the facts upon which the motion was based and whether a reasonable excuse for the delay was offered (Slavet v. Horton Memorial Hospital, 227 AD2d 465 [2nd Dept 1996]).

Defendant contends that the amended answer corrects certain facts and adds additional facts in support of the counterclaim and affirmative defenses. The court finds that to be the case. The added facts articulates in much greater detail, the conduct and transactions between the parties which were characterized in the first interposed answer as coercive acts of the plaintiff. The proposed amended answer does not change the theory of defendant's defense. It still seeks a imposition of a constructive trust based in part on the theory that defendant is the actual owner of the subject premise. It is noted that the court issued an order dated July 29, 2005, permitting the defendant to amend the answer to include Nadima Equities, his partnership, as a party.

Defendant's application to amend his answer was several months late. Inasmuch as the matter is not yet ready for trial, and the proposed amendment does not constitute any substantive changes in defendant's theory of the case, the court sees no prejudice to the plaintiff occasioned by the delay. Plaintiff's arguments are not focused in a claim of prejudice but rather on the contention that the underlying cause of action, even amended, has no merit. The court has already determined that it could not resolve this contention when it denied plaintiff's motion for summary judgment dismissing defendant's counterclaim by decision dated July 29, 2005.

Defendant's application to amend his answer is granted and deemed served upon the plaintiff with the service of the instant cross-motion.

The foregoing constitutes the decision and order of this court.

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