Livathinos v Vaughan

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Livathinos v Vaughan 2013 NY Slip Op 31166(U) May 30, 2013 Supreme Court, New York County Docket Number: 106791/08 Judge: Jeffrey K. Oing Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. [* 1] SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY T PRESENT: -- JEFFREY K. OlNd -.. PART q 8 **Wee Index Number : 106791/2008 LIVATHINOS, SPYRIDON INDEX NO. MOTION DATE VS VAUGHAN, ROBERTA F. MOTION SEQ. NO. Sequence Number : 008 AMEND SUPPLEMENT PLEADINGS The following papers, numbered 1 to ,were read on this motion to/for Notice of MotionlOrder to Show Cause -Affidavits Answering Affidavits Iw4. IW s ) . IW s ) . - Exhibits - Exhibits Replying Affidavits Upon the foregoing papers, it is ordered that this motion is - TI& rnoflon is decided In accordance with the annexed decision and ardei of the Court." , t I \ a I J.S.C. NON-FINAL DISPOSITION ..................................................................... 0 CASE DISPOSED nDENIED 0GRANTED IN PART OTHER 2. CHECK AS APPROPRIATE: ........................... MOTION I : 0GRANTED S 17SUBMIT ORDER 3. CHECK IF APPROPRIATE: ................................................ 0SETTLE ORDER 0DO NOT POST 0FIDUCIARY APPOINTMENT 0REFERENCE 1. CHECK ONE: [* 2] SUPREME COURT O F THE S T A T E OF NEW YORK COUNTY OF NEW YORK: IAS PART 4 8 Plaintiff, Index No.: 106791/08 - against Mtn. S e q . No. 008 R o b e r t a F . Vaughan, individually and as president of T r i n i t y Stewart Associates, I n c . , The Trinity Stewart Condominium and 8 Warren Realty C o r p . , DECISION AND ORDER Defendants. Index No.: 104519/09 Plaintiff, - against - Roberta F. Vaughan, Trinity Stewart A s s o c i a t e s , I n c . , 8 Warren Realty Corp., and Spyridon Livathinos, Sypridon Livathinos, MA ( No.: 3 2 5 2 9 / 0 8 Kings County) Plaintiff, - against - Roberta F. Vaughan and 287 Realty Corp., Defendants. Plaintiff Spyridon Livathinos moves pursuant to CPLR 3025 for leave to amend the complaint in the first and third captioned actions and to amend the answer in the second captioned action. [* 3] Index No. Page 2 of 106791/2008 Mtn Seq. No. 5 008 It is well settled that leave to amend the pleadings under CPLR 3 0 2 5 ( b ) is to be freely given and denied only where there is prejudice or surprise resulting from the delay to the opposing p a r t y , or if t h e proposed amendment is palpably improper or insufficient as a matter of law (McGhee v Odell, 96 AD3d 449 [lst Dept 20121 [quotation and citation omitted]). The party opposing leave to amend must overcome a heavy presumption in favor of the proposed amendment. Mere delay, without more, is not sufficient to defeat a motion for leave to amend (Kocourek v Booz Allen Hamilton Inc., 85 AD3d 502, 504 [Ist Dept 20111). Rather, [plrejudice requires some indication that the defendant has been hindered in the preparation of his case or has been prevented from taking some measure in sup.port of his position (a, citins Cherebin v Empress Ambulance Serv., Inc., 43 AD3d 364, 365 [lst Dept 20071 [quotation omitted]). Ultimately, whether to grant leave to amend is within the sound discretion of t h e court deciding the motion (Sursical Desiqn Corp. v Correa, 31 A D 3 d 744, 745 [2d Dept 20061). Here, the motion to amend is unquestionably brought at a late juncture; in fact, plaintiff s note of issue in this case was due to be filed on April 11, 2013, the same date as the instant motion was made returnable in the Motion Submissions Part. Moreover, this action w a s ini.tially commenced in 2008 - some five years ago - and plaintiff, thus, had ample time to move [* 4] b Page 3 of Index No. 106791/2008 Mtn Seq. No. 0 0 8 5 for the requested relief. Nevertheless, courts have granted motions for leave to amend even after a Note of Issue had been filed; comparatively, t h e length of delay in this case - though substantial - is not sufficient to deny amendment on that basis unless that lateness is also coupled with significant prejudice to the other side. In a r g u i n g against leave t o amend, defendants contend that, among other things, the motion is procedurally defective because it is not accompanied by a certificate of merit and plaintiff's moving papers f a i l to give any excuse for the delay in seeking an amendment. Plaintiff, in t u r n , contends that defendants' argument that an affidavit of merit is required relies on "outdated law," citing the Second Department decision in Lucido v Mancuso, 49 AD3d 220, 224-9 ( 2 d Dept 2008) (Ptf. R e p l y Aff., lq The Court in Lucido thoroughly examined the history of 25-26). CPLR 3025 and h e l d that cases "involving CPLR 3 0 2 5 ( b ) that place the burden on the pleader to establish the merit of t h e proposed amendment erroneously state the applicable standard and are no longer to be followed. No evidentiary showing of merit is required under CPLR 3 0 2 5 ( b ) " (a). the While F i r s t Department has not directly addressed the issue, it did cite Lucido with approval in MBIA Ins. Corp. v Greystone & Co., Inc., explaining t h a t " [ o l n a motion f o r leave to amend, plaintiff need not establish the merit of i t s proposed new allegations . . . but [* 5] Index No. 106791/2008 Mtn Seq. No. 0 0 8 Page 4 of simply show that the proffered amendment is not palpably insufficient or clearly devoid of merit (74 AD3d 499, 500 [l Dept 20101). The defendant in MBIA Tns. Corp., in fact, raised the same argument regarding an affidavit of merit. The Court rejected it and held that the proposed amendment was supported by a sufficient showing of merit through the submission of an affirmation by counsel, along with a transcript of relevant deposition testimony ( M B I A Ins. Corg., 74 AD3d at 499). Likewise, here, plaintiff has met his burden to show that the preferred amendment is not palpably insufficient or patently devoid of merit. Here, the Court notes that although the only support offered by plaintiff in its initial notice of motion was an affirmation of counsel, plaintiff did provide additional support for its amendment in the form of certain deposition testimony in his reply papers. Considering all these papers together, the proposed amendment is sufficiently supported. Defendants have failed to establish any legitimate claims of prejudice. The proposed amended complaint merely seeks to add legal theories on which plaintiff seeks to proceed based on previously disclosed facts. Moreover, the underlying facts have already been the subject of significant discovery. To the extent that limited depositions may need to be conducted of plaintiff with respect to certain new claims, it does n o t constitute prejudice to the defendants. The law is clear that the need for 5 [* 6] Page 5 of Index No. 106791/2008 Mtn S e q . No. 0 0 8 5 additional discovery or an extension of time to prepare a defense does not constitute prejudice sufficient to justify the denial of a motion to amend the pleadings (Jacobson v McNeil Consumer specialty Pharms., 68 AD3d 652 & [Ist Dept 2 0 0 9 1 ) . Accordingly, it is ORDERED that plaintiff's motion for leave to amend the complaint herein is granted, and the amended complaint in the proposed form annexed to the moving papers shall be deemed served upon service of a copy of this order with notice of entry h e r e o f , and it is further ORDERED that the defendants shall serve an answer to the amended complaint or otherwise respond thereto within 20 days from the date of said service. This memorandum opinion constitutes the decision and order of the C o u r t . i 1 FILED HON. J E F F R E Y K. OING, J.S.C

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