Lorenzo v Bayridge Toyota
Annotate this CaseDecided on June 24, 2004
Civil Court of the City of New York, Kings County
XIOMARA LORENZO, Plaintiff,
against
BAYRIDGE TOYOTA & JOHN DOE, a/k/a JACK CHAMPAGNE, Defendants.
69372/03
Eileen N. Nadelson, J.
The instant action was commenced on May 16, 2003, by Plaintiff, acting pro se, by serving a complaint that indicated as its cause of action "contract $25000." On July 23, 2003, Defendants served an answer in which they alleged that the endorsed complaint failed to state a cause of action and that there was lack of personal jurisdiction based on improper service. Plaintiff obtained counsel on October 28, 2003, who served and filed a Notice of Appearance on Defendants' attorney. On June 1, 2004, Plaintiff's attorney filed the motion that forms the basis of this decision. Defendants have opposed granting Plaintiff's motion to amend his complaint.
Rule 3025 (a) of the CPLR permits a party to amend pleadings 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. After such time periods have elapsed, a party may only amend or supplement its pleadings in accordance with Rule 3025 (b) of the CPLR, which states:
A party may amend his pleadings, 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. [*2]
Defendants argue that the motion should be denied because eight months have elapsed since Plaintiff retained counsel and to permit Plaintiff to amend at this point would unduly prejudice them. However, the courts have uniformly held that delay alone is not a sufficient ground upon which to deny a motion to amend pleadings; rather, delay must be accompanied by prejudice to the opposing party. Selective Ins. Co. v. Northeast Fire Protection Systems, Inc., 300 A.D.2d 883 , 752 N.Y.S.2d 145 (3d Dept. 2002). Plaintiff's failure to offer any excuse for the delay does not, in and of itself, bar the court from granting leave to amend, absent a showing of prejudice resulting from the delay. Northbay Construction Co. v. Bauco Construction Corp., 275 A.D.2d 310, 711 N.Y.S.2d 510 (2d Dept. 2000).
In the instant action, Defendants have merely alleged undue prejudice, but have offered no concrete evidence or argument to substantiate that assertion. In fact, Defendants themselves have not taken any steps during this same period of time to move the proceeding along. Therefore, with no showing of actual prejudice, the court feels compelled to grant Plaintiff's motion.
Courts are given the widest possible latitude in granting leave to amend pleadings pursuant to CPLR 3025(b). East Patchogue Contracting Co. v. Magesty Securities Corp., 181 A.D.2d 714, 581 N.Y.S.2d 365 (2d Dept. 1992). Only if the proposed amendment is palpably improper or insufficient as a matter of law, or unless prejudice and surprise directly resulting from the delay in seeking the amendment will occur, should the court deny such leave to amend. Adams v. Jamaica Hospital, 258 A.D.2d 604, 685 N.Y.S.2d 752 (2d Dept. 1999).
In the instant case, the original endorsed complaint fails to allege all the elements of a cause of action with sufficient particularity to pass judicial muster pursuant to section 3013 of the CPLR. A reason for this lack of sufficiency may be that Plaintiff originally filed the suit without the assistance of counsel. The proposed amended complaint, prepared by Plaintiff's retained attorney, would appear to cure such defects. Therefore, the court believes that, in the interests of justice, Plaintiff should be entitled to his day in court.
The court notes that even though Defendants alleged a failure to state a cause of action in their answer, in the thirteen months that have elapsed since the complaint was served they have failed to move to dismiss the action on this ground under the provisions of Rule 3211 (a) (7) of the CPLR.. Therefore, the court would be hard pressed to believe that at this stage they would be unduly prejudiced by permitting Plaintiff to amend his complaint to state a proper cause of action.
The only argument that might indicate prejudice to Defendants would be the effect of serving the amended complaint on Defendants' assertion that they were not properly served. However, subsection (e) of Rule 3211 of the CPLR states, in pertinent part:
...an objection that the summons and complain, summons with notice or [*3]
notice of petition and petition was not properly served, is waived if, having
raised such an objection n a pleading, the objecting party does not move for
judgment on that ground within sixty days after serving the pleading...
Therefore, based on Defendants' own inaction on this issue, they have waived any right to raise that objection at this time.
Based on the foregoing, the court grants Plaintiff's motion for leave to serve an amended complaint. Defendants shall be permitted to respond to such amended complaint pursuant to the provisions section 3025 (d) of the CPLR.
Dated: June 24, 2004
__________________________
EILEEN N. NADELSON, J.C.C.
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