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Posted: August 16, 2017

Motion to Amend Filed After Note of Issue Date Denied Due to Prejudice to Plaintiff

On August 2, 2017, Justice Emerson of the Suffolk County Commercial Division issued a decision in JBGR LLC v. Chicago Title Insurance Co., 2017 NY Slip Op. 51006(U), denying a motion to amend an answer filed after the Note of Issue date because of prejudice to the plaintiff, explaining:

While leave to amend a pleading should be freely given, the decision whether to grant such leave is within the court’s sound discretion, to be determined on a case-by-case basis. It must be delay coupled with significant prejudice to the other side, the very elements of the latches doctrine. When the action has already been certified ready for trial, judicial discretion in allowing amendments should be discrete, circumspect, prudent, and cautious. The court should note how long the amending party was aware of the facts upon which the motion was predicated and whether such party offers a reasonable excuse for its delay.

The record reveals that the defendant was aware of the facts upon which its motion is based as early as June 5, 2015, when it sent a letter to the court stating that it intended to move for leave to amend the answer to interpose “zoning” and fraud defenses. In the same letter, the defendant also sought permission to move simultaneously for summary judgment. By letters dated June 17, 2015, the plaintiffs objected to the defendant making a motion for summary judgment on the ground that it would be premature since discovery was not yet complete. Court records indicate that, at a conference on June 22, 2015, the court ruled that there would be no summary judgment motions until the close of discovery. Contrary to the defendant’s contentions, that ruling did not prevent the defendant from moving to amend its answer before moving for summary judgment. That the defendant wanted to make a combined motion does not, in this court’s opinion, constitute a reasonable excuse for the delay. Moreover, discovery is now closed and the case certified ready for trial. The defendant seeks to expand the existing defenses and assert six new defenses in its proposed amended answer. The court finds that, under these circumstances, the plaintiffs would be prejudiced if leave to amend were granted. Accordingly, the motion is denied.

(Internal quotations and citations omitted).

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