Koplinka-Loehr v County of Tompkins

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Koplinka-Loehr v County of Tompkins 2019 NY Slip Op 34171(U) June 4, 2019 Supreme Court, Tompkins County Docket Number: EF2018-0351 Judge: Joseph A. McBride 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. [*FILED: 1] TOMPKINS COUNTY CLERK 06/04/2019 10:44 AM NYSCEF DOC. NO. 49 INDEX NO. EF2018-0351 RECEIVED NYSCEF: 06/04/2019 CI2019-11478 Index # : EF2018-0351 At a Motion Term of the Supreme Court of the State ofNew York held in and for the Sixth Judicial District at the Tompkins County Courthouse, Ithaca, New York, on the 12th day of April, 2019. PRESENT: HON. JOSEPH A. MCBRIDE Justice Presiding STATE OF NEW YORK SUPREME COURT : TOMPKINS COUNTY MICHAEL A. KOPLINKA-LOEHR, DECISION AND ORDER Plaintiff, Index No. EF2018-0351 RJI No. 2018-0294-M -vs- COUNTY OF TOMPKINS, ITHACA-TOMPKINS COUNTY TRANSPORTATION COUNCIL, and JOHN DOES 1-10, Defendant(S). APPEARANCES: Counsel for Plaintiff: Russell E. Maines 109 Seneca Street Ithaca, NY 14850 Counsel for Defendant: TOMPKINS COUNTY ATTORNEY By: Jonathan Wood, Esq. 125 E. Court Street Ithaca, NY 14850 1 of 4 [*FILED: 2] TOMPKINS COUNTY CLERK 06/04/2019 10:44 AM NYSCEF DOC. NO. 49 INDEX NO. EF2018-0351 RECEIVED NYSCEF: 06/04/2019 CI2019-11478 Index #: EF2018-0351 JOSEPH A. MCBRIDE, J.S.C. This matter is before the Court to address the motion of Plaintiff, Michael A. KoplinkaLoeher ("Plaintiff') to 1) Permitting the plaintiff to amend the complaint in the form filed herewith as the Second Amended Verified Complaint pursuant to CPLR 3025(b) on the grounds that such amendments relate the transactions and occurrences alleged in the prior pleadings; 2) Adding a party defendant, Martha Robertson, pursuant CPLR 1003 and Perez v. Paramount Communications, Inc. 92 NY2d 749 (1999); 3) Permitting supplementation of the summons in the form annexed within Exhibits A and B as the Second Amended Summons pursuant CPLR 305(c); and 4) Granting whatever other and further relief this Court deems just, equitable and proper. The Defendants, County of Tompkins, Ithaca-Tompkins County Transportation Council, and John Does 1-10 (collectively "Defendants") filed opposition to said motion. The parties through their counsel appeared for oral argument on the motion on April 12, 2019. The Court received and reviewed moving papers filed electronically and maintained by the County Clerk and made a determination as discussed below. BACKGROUND FACTS On February 6, 2018, Plaintiff was offered a part-time position, as a County Employee and accepted the position the next day. By letter dated March 2, 2018, Plaintiffs employment offer was rescinded, claiming Plaintiff was dishonest in a public forum on two separate occasions. The case before the Court is what appears to be a wrongful termination / rescission of an employment offer case. Plaintiff originally filed a summons and complaint on June 18, 2018. Subsequently, on July 2, 2018, Plaintiff filed an amended complaint as ofright pursuant CPLR 3025(a). On August 8, 2018, Plaintiff filed another summons and complaint under separate index number (EF2018-0515). This new case is nearly identical to the first complaint filed June 18 and arising out of the same occurrences. On October 4, 2018, the Court, signed by Hon. Molly Fitzgerald, granted Plaintiffs Motion to Consolidate the two indexed cases. Plaintiff claims that through discovery, he found notes that Martha Robinson, ("Robinson") expressed concerns about Plaintiffs potential employment appointment, citing 2 of 4 [*FILED: 3] TOMPKINS COUNTY CLERK 06/04/2019 10:44 AM NYSCEF DOC. NO. 49 INDEX NO. EF2018-0351 RECEIVED NYSCEF: 06/04/2019 CI2019-11478 Index #: EF2018-0351 unspecified instances of Plaintiffs dishonesty that had occurred in the past and unrelated to the two instances as indicated in the employment revocation letter. Plaintiff now comes before the Court with a Motion to Amend the Complaint to add Robinson as named party under a new theory of law (defamation). ANALYSIS AND DISCUSSION Pursuant CPLR 3025(b), "A party may amend his pleading, or supplement it by setting forth additional or subsequent transaction occurrences, at any time by leave of the court ... Leave shall be freely given upon such terms as may be just ... " The Third Department authorizes, that "the movant need not establish the merits of the proposed amendment and, "[i]n the absence of prejudice or surprise resulting directly from the delay in seeking leave, such applications are to be freely granted unless the proposed amendment is palpably insufficient or patently devoid of merit." NY AHSA Servs., Inc. Self-Insurance Trust v. People Care Inc., 156 A.D.3d 99, 101-102 (3 rd Dept. 2017). Upon review of the allegations and the contents of the proposed second amended complaint, while simultaneously being mindful of the well-established threshold to amend, the Court finds that absent an objection from Defendant, the Court must grant the motion. The Third Department has made clear that amendments that are absent prejudice or surprise must be freely given. Moreover, this is not the time to analyze the merits of the proposed amended cause of action when the Defendant can move to dismiss or for summary judgment at the appropriate time. See Id. at 102. The Court notes the Defendant' s objection that in the interest of justice it is not in the best interest of judicial economy. However, the Defendant fails to state any specific instance of prejudice or surprise that will result from the amendment. With no instances of identified prejudice, the Court finds that the second amended complaint is related to the original cause of action and would overlap in testimony, and therefore the Plaintiffs motion is GRANTED. 3 of 4 [*FILED: 4] TOMPKINS COUNTY CLERK 06/04/2019 10:44 AM NYSCEF DOC. NO. 49 INDEX NO. EF2018-0351 RECEIVED NYSCEF: 06/04/2019 CI2019-11478 Index #: EF2018-0351 CONCLUSION Based upon the foregoing, Plaintiffs motion in all respects is GRANTED. This constitutes the DECISION AND ORDER of the Court. The transmittal of copies of this Decision and Order by the Court shall not constitute notice of entry (see CPLR 5513). Dated I !, 'j Ithaca, N twYork 2019 4 of 4

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