Shmueli v The Savoy Condominium, LLC

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Shmueli v The Savoy Condominium, LLC 2018 NY Slip Op 33303(U) December 19, 2018 Supreme Court, New York County Docket Number: 160302/2016 Judge: Barbara Jaffe Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [* 1] INDEX NO. 160302/2016 NYSCEF DOC. NO. 136 RECEIVED NYSCEF: 12/19/2018 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: PART IAS MOTION 12EFM -----------------------------------------------------------------------------------x SARIT SHMUEL!, INDEX NO. Plaintiff, 160302/2016 MOTION DATE -vMOTION SEQ. NO. THE SAVOY CONDOMINIUM, LLC, MAXWELLKATES, INC., 003 DECISION AND ORDER Defendants. -----------------------------------------------------------------------------------x The following e-filed documents, listed by NYSCEF document number (Motion 003) 20, 21, 22, 23, 24, 25,26,27,28,29,30,31,32,33,34,35,36 amend caption/pleadings were read on this motion to Plaintiff moves for an order granting her leave to file and serve a second amended complaint and for a jury trial. Defendants oppose. In her first amended complaint, plaintiff alleges that she slipped and fell in defendant's condominium building where she resides and injured herself, and seeks compensatory damages. (NYSCEF 5). In her proposed second amended complaint, plaintiff alleges that defendants have engaged in corruption, criminal activity, harassment, threats, obstruction of justice, abuse of power, and retaliation against her for various issues related to the condominium and its management. (NYSCEF 22). Defendants argue that plaintiff's proposed complaint is improper as it does not relate to the claims in the original complaint, which were solely for personal injuries based on plaintiff's slip and fall, and that they had no notice of the new allegations. They allege they are prejudiced by their inability to investigate the new claims in a timely manner. (NYSCEF 24). According to plaintiff, as discovery has not yet commenced, defendants are not prejudiced by the amendment 160302/2016 SHMUELI, SARIT vs. SAVOY CONDOMINIUM, LLC Motion No. 003 1 of 4 Page 1 of4 [* 2] INDEX NO. 160302/2016 NYSCEF DOC. NO. 136 RECEIVED NYSCEF: 12/19/2018 of her complaint, and she relates her slip and fall to the allegations raised in her proposed complaint, including that the slip and fall was caused by defendants' retaliatory actions. (NYSCEF 30). Pursuant to CPLR 3025(b ), a party may amend her pleading or supplement it by setting forth additional or subsequent transactions or occurrences at any time by leave of court, which shall be freely given upon such terms as may be just. A motion for leave to amend should be freely granted unless the proposed amendment would unfairly prejudice or surprise the opposing party, or is palpably insufficient or patently devoid of merit. (Maldonado v Newport Gardens, Inc., 91AD3d731 [2dDept2012]). No prejudice or surprise is shown when the proposed complaint sets forth new claims or theories based on the facts stated in the original complaint. (See e.g., Brewster v Baltimore & Ohio R. Co., 185 AD2d 653 [4th Dept 1992] [when proposed amendment sets forth no new facts but merely adds additional theory ofrecovery, leave should generally be granted]; see also MBIA Ins. Corp. v JP. Morgan Securities, LLC, 144 AD3d 635 [2d Dept 2016] [defendants could not legitimately claim surprise or prejudice as proposed amendment premised on same facts, transactions, or occurrences as in original complaint]). Where new facts are set forth in a proposed amended complaint, there is no notice to the opposing party, and surprise or prejudice is established. (See Bonanni v Straight Arrow Publishers, Inc., 133 AD2d 585 [1st Dept 1987] [leave to amend should have been denied as original complaint gave no notice that party intended to proceed against other party on different and new theory, which required different factual proof]). Plaintiffs proposed amendment sets forth both new facts and new claims that are not alleged in her first amended complaint. (Biondi v Behrman, 149 AD3d 562 [1st Dept 2017], lv 160302/2016 SHMUELI, SARIT vs. SAVOY CONDOMINIUM, LLC Motion No. 003 2 of 4 Page 2 of 4 [* 3] INDEX NO. 160302/2016 NYSCEF DOC. NO. 136 RECEIVED NYSCEF: 12/19/2018 dismissed in part and denied in part 30 NY3d 1012 [motion for leave to amend should have been denied as defendants had no notice of plaintiffs new claims, and new theory not related to claims in original pleading]; Hustedt Chevrolet, Inc. v Jones, Little & Co., 129 AD3d 669 [2d Dept 2015] [allegations in original complaint did not give notice of facts, transactions, or occurrences giving rise to proposed new claim]). Thus, absent notice, the proposed second amended complaint is prejudicial to defendants. Moreover, while plaintiff numbers the paragraphs in her proposed second amended complaint, as required by CPLR 3014 (every pleading shall consist of plain and concise statement in consecutively-numbered paragraphs; each paragraph shall contain one allegation, if possible; and separate claims shall be separately stated and numbered]), she does not state separate claims, and some of the paragraphs state no legal claim or basis for relief or damages. In any event, on a motion to amend, the court must also determine whether the proposed amendment has merit (MBIA Ins. Corp. v Greystone & Co., Inc., 74 AD3d 499 [1st Dept 201 O]), and may deny leave to amend if the proposed amendment is palpably insufficient or patently devoid of merit on its face (Guinta 's Meat Farms, Inc. v Pina Constr. Corp., 80 AD3d 558 [2d Dept 2011]). Construing plaintiffs new claims to the extent possible, some of them are not legally cognizable, such as the harassment claim (Pollack v Cooperman, 109 AD3d 973 [2d Dept 2013], app dismissed 23 NY3d 949 [2014] [New York state does not recognize civil claim for harassment]), and the obstruction of justice claim (Adamski v Romano-Schulman, 56 AD3d 1078 [3d Dept 2008] [no private right of action exists for obstruction of justice]). Her claim of retaliation, absent an allegation that plaintiff engaged in protected activity under New York state or city human rights laws also fails (Ananiadis v Mediterranean Gyros Prods., Inc., 151 AD3d 160302/2016 SHMUELI, SARIT vs. SAVOY CONDOMINIUM, LLC Motion No. 003 3 of 4 Page 3 of 4 [* 4] INDEX NO. 160302/2016 NYSCEF DOC. NO. 136 RECEIVED NYSCEF: 12/19/2018 915 [2d Dept 2017]), and the abuse of power claim fails absent an allegation that defendants are government employees (Kreamer v Town of Oxford, 91AD3d1157 [3d Dept 2012]). Plaintiff also sets forth no viable cause of action based on "corruption," "criminal activity," and "threats." Additionally, a fraud claim must be pleaded with particularity, and plaintiff has not done so. (CPLR 3016[b]). Thus, the proposed new claims are palpably insufficient and devoid of merit. (See e.g., Mance v Mance, 128 AD2d 448 [1st Dept 1987], app dismissed in part, denied in part 70 NY2d 668 [among other reasons, as proposed fraud claim insufficiently pleaded, there was no merit to proposed amended complaint]). Plaintiffs request for a jury trial is denied as premature and as she must abide by CPLR 4102(a) in seeking a jury trial. For all of these reasons, it is hereby ORDERED, that plaintiffs motion is denied. 12/19/2018 DATE CHECK ONE: APPLICATION: CHECK IF APPROPRIATE: ~ CASE DISPOSED GRANTED 0 8 BARBARA JAFFE, J.S.C. NON-FINAL DISPOSITION DENIED SETTLE ORDER GRANTED IN PART SUBMIT ORDER INCLUDES TRANSFER/REASSIGN 160302/2016 SHMUELI, SARIT vs. SAVOY CONDOMINIUM, LLC Motion No. 003 4 of 4 FIDUCIARY APPOINTMENT D D OTHER REFERENCE Page4 of 4

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