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Current Developments in the Commercial Divisions of the
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Posted: November 15, 2017

Resolving Split, Third Department Rules That Motion to Amend Requires No Showing of Merit

On November 9, 2017, the Third Department issued a decision in NYAHSA Services, Inc., Self-Insurance Trust v. People Care Inc., 2017 NY Slip Op. 07918, resolving a split between the appellate divisions by holding that a motion to amend requires no showing of merit, explaining:

Pursuant to CPLR 3025(b), a party may amend its pleadings at any time by leave of the court, which shall be freely given upon such terms as may be just. It has long been recognized that the decision whether to grant leave to amend pleadings rests within the trial court’s sound discretion and, absent a clear abuse of that discretion, will not be lightly cast aside. We have previously adhered to a rule requiring the proponent of a motion for leave to amend a pleading to make a sufficient evidentiary showing to support the proposed claim, that is, to make an evidentiary showing that the proposed amendments have merit. However, we are persuaded to depart from that line of authority and follow the lead of the other three Departments, and we now hold that no evidentiary showing of merit is required under CPLR 3025(b). Thus, the rule on a motion for leave to amend a pleading is that the movant need not establish the merits of the proposed amendment and, in 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. The rationale for adopting this rule is that the liberal standard for leave to amend that was adopted by the drafters of the CPLR is inconsistent with requiring an evidentiary showing of merit on such a motion. If the opposing party on a motion to amend wishes to test the merits of the proposed added cause of action or defense, that party may later move for summary judgment or to dismiss upon a proper showing.

(Internal quotations and citations omitted) (emphasis added).

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