J.B. Stauffer Constr. Co., Inc. v Mailloux

J.B. Stauffer Constr. Co., Inc. v Mailloux 2006 NY Slip Op 09800 [35 AD3d 1207] December 22, 2006 Appellate Division, Fourth Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 14, 2007

J.B. Stauffer Construction Co., Inc., Appellant, v Rose Marie Mailloux, Individually and as Executor of William Mailloux, Deceased, Respondent.

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Appeal from an order of the Supreme Court, Onondaga County (Thomas J. Murphy, J.), entered October 31, 2005 in a breach of contract action. The order, insofar as appealed from, denied that part of plaintiff's cross motion for leave to amend the complaint to add a cause of action for an account stated.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed without costs.

Memorandum: Supreme Court did not abuse its discretion in denying that part of plaintiff's cross motion seeking leave to amend the complaint to add a cause of action for an account stated, particularly in view of plaintiff's failure to present a satisfactory excuse for the delay in asserting that proposed cause of action and the prejudice to defendant if the court granted that part of the cross motion (see Thibeault v Palma, 266 AD2d 616, 617 [1999]). Present—Scudder, P.J., Martoche, Centra and Green, JJ.