Karl'S Plumbing & Heating Co. Inc. v Yevool, Inc.
Annotate this CaseDecided on February 3, 2012
Supreme Court, Queens County
Karl's Plumbing & Heating Co. Inc., Plaintiff,
against
Yevool, Inc., ILAN COHEN, JOSEPH COHEN and YEHUDA COHEN, Defendants.
11677/09
JENNIFER L. STEWART, SMITH, BUSS & JACOBS LLP
ATTORNEYS FOR DEFENDANTS
733 YONKERS AVENUE
YONKERS, NEW YORK 10704
ROBERT H. BROWN, ESQ., ATTORNEY FOR PLAINTIFF,
98-20 METROPOLITAN AVENUE
Forest Hills, NY 11375
Martin J. Schulman, J.
The following papers numbered 1 to 7 read on this motion by defendants for an order pursuant to CPLR § 3025(b) granting them leave to amend their verified answer to include two affirmative defenses and a counterclaim
PAPERS
NUMBERED
[*2]
Notice of Motion-Affidavits-Exhibits-Memo of Law..........1-3
Answering Affidavit.............................................................4-6
Reply.....................................................................................7
Upon the foregoing papers, it is hereby ordered that this motion by defendants which seeks an order pursuant to CPLR § 3025(b) granting them leave to amend their verified answer on the eve of the trial to include the affirmative defenses of accord and satisfaction and partial payment, and a counterclaim by defendant Yevool, Inc. in the amount of Forty Three Thousand ($43,000.00) to correct and complete plaintiff's allegedly defective work, is denied.
This is an action by plaintiff, a plumbing contracting company, for monies allegedly owed to it for services rendered to defendant, Yevool, Inc. ("Yevool"), a real estate developer, between 2006 and 2008.
Plaintiff commenced this action in May, 2009.
Defendants served their original verified answer on August 14, 2009. A Note of Issue was filed by plaintiff on October 25, 2010.
Generally, in the absence of prejudice or surprise to the opposing party, leave to
amend a pleading should be freely given unless the proposed amendment is palpably insufficient or patently devoid of merit. See, T. S. Constr., Inc. v Calapai, ___ AD3d____, 935 N.Y.S.2d 68 (2ND Dep't., December 20, 2011); American Cleaners, Inc. v American Int. Security Lines Ins. Co., 68 AD3d 792, 794; Lucido v Mancuso, 49 AD3d 220. However, when leave to amend is sought, as here, on the eve of trial, judicial discretion in granting leave to amend should be exercised sparingly. See, Alrose Oceanside LLC v Mueller, 81 AD3d 574; Morris v Queens Long Is. Med. Group, P.C., 49 AD3d 827. "In exercising its discretion" [under these circumstances] "the court should consider how long the party seeking the amendment was aware of the facts upon which the motion was predicated, whether a reasonable excuse for the delay was offered, and whether prejudice resulted there from" (see, American Cleaners Inc., supra; quoting Cohen v Ho, 38 AD3d 705, 706).
Here, defendants seek to serve an amended answer on the eve of trial (the case was scheduled to be tried on January 19, 2012), alleging the additional affirmative defenses of accord and satisfaction and partial payment, and a counterclaim in the amount of Forty Three Thousand ($43,000.00) Dollars. The defendant's counsel, however, failed to comply with the recent amendment to CPLR §3025 (b), effective January 1, 2012, which requires the movant to not only submit the proposed pleading, but to highlight the difference between the original pleading and the proposed amended pleading ("Any motion to amend or supplement pleadings shall be accompanied by the proposed amended or supplemental pleading clearly showing the changes or additions to be made to the pleading"). The moving papers did not include an affidavit in support of the motion by [*3]any of the defendants which would articulate the specific amendments sought, nor did the defendant's attorney's moving affirmation delineate the proposed additions to defendant's answer.
Counsel has also failed to set forth any reason for the delay in moving to amend, and why the motion was being made at this late date. Further, there is no affidavit of merit annexed by any of the defendants. Instead, the defendant's attorney relies on the Appellate Division, Second Department's declaration in the case of Lucido v Mancuso, 49 AD3d 220, 229, that "(n)o evidentiary showing of merit is required under CPLR §3025 (b). The court need only determine whether the proposed amendment is palpably insufficient to state a cause of action or defense, or is patently devoid of merit." Defense counsel further relies on the proposed amended answer's verification by defendant Ilan Cohen, "one of the defendants in the within Supreme Court action" who avers that the "contents" of the verified answer "is true to (his) knowledge." However, the verification is only adequate for that defendant, is insufficient as a verification for the co-defendants, and is defective and of no evidentiary value as to the primary defendant, Yevool, Inc., since Ilan Cohen failed to state in the verification his relationship to the corporate defendant as required by CPLR §3020 (d)(1).
Furthermore, defendants' "Response to Plaintiff's First Set of Interrogatories" dated February 1, 2010, which allegedly sets forth facts that serve as the predicate for the motion at bar, lacks evidentiary and probative value. The "response" was by defendant's attorney and was not made under oath as required by CPLR §3133(b) by any of the individual defendants or, more importantly, by an employee or officer of defendant Yevool, Inc., who had personal knowledge of the facts (See, generally, Zuckerman v City of New York, 49 NY2d 557, 563).
Although the proposed amendment is neither palpably insufficient nor totally devoid of merit,(see, Maldonado v Newport Gardens, Inc., ___AD3d___, 2012 NY Slip Op 0034 (2nd Dep't., January 17, 2012), defendants unreasonably delayed for over two years the assertion of the proposed counterclaim and the affirmative defenses until literally on the eve of trial. See, Trataros Const., Inc. v New York City School Const. Auth., 46 AD3d 864. Furthermore,no proof in evidentiary form has been submitted by the defendants to substantiate their attorney's contentions that the plaintiff has been aware during the litigation of the potential assertion of a counterclaim for damages and affirmative defenses of accord and satisfaction and partial payment, that the plaintiff would not be surprised or prejudiced, that no further discovery would be necessary, and that the trial of this action would not be delayed. Nor was a reasonable excuse for the delay in moving for leave to amend their answer proferred by the defendants. Thus under these circumstances, the defective verification of the proposed amended answer, as it pertains to the corporate defendant, is fatal to defendant's application. (see, American Clearners, Inc., supra; T.S. Constru., Inc., supra).
Accordingly,the motion by defendants for leave to amend their answer is denied. [*4]
The foregoing constitutes the decision and order of this court.
Dated: February 3, 2012______________________________
J.S.C.
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