Great American Restoration Servs. Inc. v Sippin
2012 NY Slip Op 31093(U)
April 12, 2012
Sup Ct, Nassau County
Docket Number: 5559/10
Judge: Anthony L. Parga
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)(
SHORT FORM ORDER
SUPREME COURT- NEW YORK STATE- NASSAU COUNTY
PRESENT:
PARGA
HON. ANTHONY
L.
.JUSTICE
J?
GFtEi\ll i\MEFtICi\N FtES1l0AATION
SEFtVICES INC.
J?laintitf
i\Ft 1l 6
INDE)( NO. 5559/10
ManON Di\TE: 03/05/12
-against -
SEQUENCE NO. OOJ
SllEVEN SIJJ?IN , 1l i\MMi\Ft SIPPTN a/kla
1l i\MMY SIPJ?IN , Ni\SSi\U EDUCi\ 1l0FtS
FEDEAAL CREDIT UNION
JOHN DOES 1-
Defendants.
Notice of Motion , i\ffs. & Exs........
i\ffirmation in Opposition & Exs..................................
Fteply i\ffirmation....................................................... ............... ..................,..
Upon the foregoing papers , plaintiffs motion to amend its Fteply to defendants Steven
Sippin and llammar Sippin a/k/a llammy Sippin s counterclaims to add an additional affrmative
defense , pursuant to CJ?LR 93025 , is denied.
llhis action was commenced by plaintiff Great American Ftestoration Services , Inc.
(hereinafter "
Gi\RS" ) for breach of contract involving construction work to rebuild the home of
defendants Steven Sippin and Tammar Sippin a/k/a Tammy Sippin (hereinafter collectively
referred to as " Sippins ), located at 58 Strathmore Street , North Woodmere , New York , afler it
was completely destroyed by fire. Plaintiffs second amended complaint contains causes of
action for breach of contract , unjust enrichment , and to foreclose a mechanic s lien. llhe Sippins
answered plaintiffs complaint and asserted counterclaims for breach of contract and negligently
performed work. llhe Sippins allege that due to the negligent work performed by GARS , and the
breach of contract by Gi\RS , the Sippins were caused to expend $105 194.29 in additional labor
,"
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costs and approximately $83 711.47 in additional material to complete the re-construction of
their house and to repair and/or redo improper work previously performed by Gi\RS.
Plaintiff herein seeks leave to amend its Reply to the Sippins ' counterclaims to add a
sixth affirmative defense as follows: " Sippin s counterclaims fail because Sippin failed to
comply with the contractual termination procedure in Section Seven of the parties ' contract by
failing to give Great i\merican written notice of termination. Sippin s counterclaims fail because
Sippin failed to give Great i\merican notice and a chance to cure any alleged defaults.
J?laintiff
annexes its proposed llhird i\mended Verified Reply, containing said new counterclaim , to its
motion papers as Exhibit "
" llhe COUJi notes that
the plaintiff has failed to annex a copy of the
paries ' contract to its motion.
Defendants Sippins oppose plaintiffs application , contending that the proposed
affirmative defense is without merit and that the Sippins would be unduly pr
iudiced by the
amendment to plaintiff's Reply. Prior to the instant motion being brought , plaintiff served three
complaints - an initial complaint , an amended complaint , and a second amended complaint - and
also served three versions of the Reply to defendants ' counterclaims - a initial Reply, an
i\mended Reply, and a Second i\mendcd Ftcply. Defendants Sippins contend that each time
plaintiff amendcd its pleadings
in the spirit of cooperation and in the interest of judicial
economy " defendants Sippins consented to the service of the amended pleadings. llhe plaintiffs
Second i\mended complaint was served in December 20J 0 and plaintiff's Second i\mended
Reply was served in February 2011. Defendants Sippins contend that the instant motion was
brought by plaintiff in January 20 J 2 , after the parties had exchanged over J 3 00 pages in
discovery documents and after they had spent eight days conducting the depositions of David
Pinto (the owner of Gi\RS),
i\
vi J?into (David' s brother), Steven Sippin , and Tammy Sippin.
The last of the depositions was completed on November 29 , 20J 1. Defendants contend that there
has been no discovery regarding the claims in plaintiff's proposed affirmative defense or any
prior notice that this defense would be raised by the plaintiff.
Defendants Sippins first argue that the plaintiffs proposed counterclaim has no merit
the plaintiff
i\
did
receive notice of termination , by letter to plaintiff' s
counsel on January 11 ,
copy of said letter was also served upon plaintiff by the defendants
, as
20 I O.
, on or about October 26
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2010 , contained within defendants Sippins ' Response to J?laintiff's Notice for Discovery and
Inspection. In addition , counsel for plaintiff explicitly acknowledged receipt of the notice of
termination in his subsequent correspondences. A review of the parties
' contract , which
defendants contend was drafted by Gi\RS , demonstrates that the contract does not expressly
provide for Gi\RS to have an " opportunity to cure " defective work or defaults
, as asserted in its
proposed additional sixth affirmative defense. Copies of the letter giving notice of termination
plaintiff's counsel's acknowledgment of samc , defendants
' Response to J?laintiff's Notice for
Discovery and Inspection , and the parties ' contract are annexed as exhibits to defendants
opposition papers.
i\dditionally, defendants Sippins contend that they will suffer significant prejudice by
the
amendment to plaintiff's Reply because the nature and facts surrounding the proposed
affirmative defense were never addressed during discovery, discovery has been completed
, and
the addition of the proposed defense would necessitate further document discovery and further
vi Pinto. Defendants contend that plaintiff never raised any
objection to the method or timing of the defendants ' termination of the contract
, nor did plaintiff
ever indicate that there was a breach of the contract because Gi\RS should have been given a
depositions of David Pinto and
i\
right to cure. Plaintiff's interrogatory responses do not indicate that it was making
any claim that
Gi\RS did not receive a notice of termination or that Gi\RS should have had a chance to cure
any defects.
i\s
plaintiff never previously raised such an affirmative defense
, defendant contends
that plaintiff's attempt to raise said defense after the completion of discovery amounts to "
trial by
ambush " as defendants have not had an opportunity to conduct the appropriate discovery with
which to develop their trial strategy regarding same.
The decision whether to permit an amendment to a pleading is one that lies in the
discretion of the trial court. (See Surgical Design Corp.
v. Correa 31 AD. 3d
YS. 2d 542 (2d Dept. 2006);
Thone v. Crown Equip. Corp. 27 AD. 3d 723
744 ,
819
, 810 N. YS. 2d 925
(2d Dept. 2006);
Voyticky v. Duffy,
Iv. dismissed in part, denied in part
19 AD. 3d 685 , 798 N. YS. 2d 494 (2d Dept. 2005),
6 N. Y3d 800 (2006);
Travelers Prop. Cas.
AD. 2d 564 , 735 N. YS. 2d 208 (2d Dept. 2001)). In exercising its discretion
v. Powell , 289
, the court should
take into consideration " how long the amending paJiy was aware of the facts upon which the
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motion was predicated , whether a reasonable excuse for the delay was offered and whether
prejudice resulted therefrom.
(Brooks v. Robinson 56 AD. 3d 406 867 N. Y.S.2d 133 (2d Dept.
38 AD. 3d 705 , 833 N.
S.2d 542 (2d Dept. 2007)). Leave to amend a
pleading is to be freely given where there is no showing of genuine prejudice or surprise to the
2008); Cohen
v.
nonmoving par,
and no
showing that the proposed amendment is "palpably insuffcient as a
matter of law" or " totally devoid of merit."
Y.S.2d 410 (2d Dept. 2005);
Bolanowski
York 21 AD.3d 340 800 N.
(Consolidated Payroll Services , Inc. v. Berk, 794
v.
Trustees o.fColumbia University in City of New
2d 560 (2d Dept. 2005);
596 848 N. Y.S.2d 174 (2d Dept. 2007);
Alatorre
v.
Hee Ju Chun 44 AD.
Maspeth Federal Savings and Loan Ass '
67 AD.
750 888 N. Y.S. 2d 599 (2d Dept. 2009)).
In the instant matter , the plaintiff served two amended complaints and two amended
Replies to defendants ' counterclaims prior to seeking the relief herein. Plaintiff's Second
i\mended Reply was served in February 2011 , over one year after the letter terminating the
parties ' contract was sent to plaintiffs counsel. It is evident that plaintiff was aware of the facts
upon which this motion is predicated from the outset of this action in 2010
raise said defense despite serving a total of three Replies to defendants
, yet plaintiff failed to
' counterclaims. J?laintiff
offers no excuse for the delay in raising the proposed defense herein
, and the Court notes that
discovery in this action is complete and the action was certified for trial on March 5
, 2012.
In addition , defendants Sippins have demonstrated that plaintiff's delay in bringing the
within motion until after the completion of all depositions and document discovery is prejudicial
to them , as defendants did not conduct discovery regarding the defense which plaintiff seeks to
add. Further ,
where the proposed amendment is palpably insufficient as a matter of law or is
totally devoid of merit , leave to amend a pleading should be denied.
(Morton
Mem. Hosp. 32 AD. 3d
603
6399 N. Y.S. 2d
381
820 N. Y.S. 2d 294 (2d Dept. 2006);
v.
Brookhaven
v.
Haag,
224 AD.
697 (2d Dept. 1996)(a court need not grant leave where the merit of the
Reuter
proposed amendment is plainly lacking);
Thone v. Crown Equ;p. Corp. 27 AD. 3d 723
, 810
N. Y.S. 2d 925 (2d Dept. 2006);
Probst
v.
Cacoulidis 295 AD. 2d 33 I , 743 N. Y.S.2d 509 (2d
Dept. 2002)(a cause of action totaJJy devoid of merit or palpably
insuffcient as a matter of law
wil not be allowed)). Plaintiff seeks to amend its reply to include an affirmative defense that the
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counterclaims fail because Gi\RS received no written notice of termination and no chance to
cure the alleged defects , however , defendants have demonstrated that there was
, in fact , written
notice of termination of the contract and that there was no express requirement within the
contract that plaintiff be allowed to cure the defects.
As the plaintiff offers no excuse for its delay in bringing the instant motion to add an
affrmative defense relating to notice of termination of the contract
demonstrated that they wil
, as the defendants have
suffer undue prejudice by the late amendment , and as discovery has
been completed and the case has now been certified for trial
, the plaintiff's motion for leave to
amend its Reply to defendants ' counterclaims to add a sixth affrmative defense is denied.
llhis constitutes the decision and Order of this Court.
Dated: i\pril 12
Cc:
2012
The Law Offce of Joel S. Charleston
11 Pearl Street
Valley Stream , NY 11581
King & King, LLP
27- 12 37 i\venue
Long Island City, NY 1 I 101
ENTERED
APR 19 2012
NASSAU COUNTY
COUNTY CLERK' S OFFICE
