J. Ratto Landscaping, Ltd. v Dickran

[*1] J. Ratto Landscaping, Ltd. v Dickran 2010 NY Slip Op 50591(U) [27 Misc 3d 128(A)] Decided on March 31, 2010 Appellate Term, Second Department 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 March 31, 2010
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: : NICOLAI, P.J., TANENBAUM and MOLIA, JJ
2009-486 S C.

J. Ratto Landscaping, Ltd., Appellant,

against

Harry Dickran and DONNA DICKRAN, Respondents.

Appeal from an order of the District Court of Suffolk County, First District (James P. Flanagan, J.), dated January 7, 2009. The order granted a motion by defendants for leave to amend their counterclaim to increase the amount of damages sought.

ORDERED that the order is affirmed without costs.

Plaintiff brought this action seeking payment in the amount of $13,464.10 for landscaping services provided to defendants. Defendants counterclaimed for $15,000, alleging that plaintiff had performed substandard work, which had caused damage to their property. About three months after plaintiff had certified the case ready for trial, defendants moved to amend their counterclaim to increase the amount of damages sought to $55,000. The District Court granted defendants' motion, and plaintiff appeals.

In general, leave to amend a pleading should be freely granted where there is no significant prejudice or surprise to the opposing party and where the proof submitted in support of the motion indicates that the amendment may have merit (see CPLR 3025 [b]; Edenwald Contr. Co. v City of New York, 60 NY2d 957 [1983]). The determination whether to grant such leave is within the motion court's broad discretion, and the exercise of that discretion will not be lightly disturbed (see e.g. Ingrami v Rovner, 45 AD3d 806 [2007]), even though such discretion should be exercised sparingly where, as here, the motion was made close to trial (see e.g. Galarraga v City of New York, 54 AD3d 308 [2008]).

In this case, defendants based their claim for an increase upon an estimate and report provided by a contractor whom defendants intended to call as an expert witness. The estimate and report were obtained after defendants had filed their original counterclaim (compare e.g. Morris v Queens Long Is. Med. Group, P.C., 49 AD3d 827 [2008]), and were immediately provided to plaintiff. Moreover, defendants did not inordinately delay making their motion [*2](compare e.g., Fischer v RWSP Realty, LLC, 53 AD3d 595 [2008]; Trataros Constr., Inc. v New York City School Constr. Auth., 46 AD3d 874 [2007]; EDP Med. Computer Sys. v Sears, Roebuck & Co., 255 AD2d 481 [1998]; Perricone v City of New York, 96 AD2d 531 [1983]), and, in fact, had previously attempted to obtain plaintiff's consent to the amendment.

The argument by plaintiff that it would be prejudiced by allowing the amendment is unavailing. Plaintiff had been provided with defendants' expert report about a year before plaintiff filed the certificate of readiness (see e.g. Arthur Pile & Found. Corp. v Bonwit Constr. Co., 23 AD2d 540 [1965]), and, in any event, the District Court's order allows plaintiff to conduct any additional discovery it deems necessary based upon the amendment.

For all the foregoing reasons, we find that the District Court did not improvidently exercise its discretion in allowing the amendment. Accordingly, the order is affirmed.

Nicolai, P.J., Tanenbaum and Molia, JJ., concur.
Decision Date: March 31, 2010