Commercial Division Blog

Posted: July 6, 2020 / Categories Commercial, Court Rules/Procedures

Delay in Moving to Amend No Basis for Denying Motion if There is no Prejudice

On June 18, 2020, Justice Borrok of the New York County Commercial Division issued a decision in Dual Diagnosis Treatment v. Complete Bus. Solutions, 2020 NY Slip Op. 31936(U), holding that delay in moving to amend is no basis for denying the motion if the other party is not prejudiced, explaining:

Pursuant to CPLR § 3025 (b), leave to amend pleadings should be freely given and denied only where there is prejudice or surprise resulting from the delay to the opposing party, or if the proposed amendment is palpably improper or insufficient as a matter of law. The party opposing the amendment must overcome a heavy presumption in favor of the proposed amendment.

Mere delay does not defeat a motion for leave to amend. Rather, prejudice requires some indication that the opposing party has been hindered in preparing the case or has been prevented from taking some measure to support its position. Ultimately, leave to amend is committed to the court's discretion.

Although the Counterclaim Plaintiffs sought leave to amend one year after filing their Answer, mere delay, without more, is not sufficient to defeat a motion for leave to amend. Dual Diagnosis cannot claim to be surprised by the Counterclaims because the parties' dispute involves the clarification of what sums, if any, are owed pursuant to the MCA Agreements. Further and significantly, Dual Diagnosis is not prejudiced by the Proposed Counterclaims because document discovery remains ongoing, depositions have not yet been conducted, and in any event the need for additional discovery does not constitute prejudice sufficient to justify denial of an amendment.

(Internal quotations and citations omitted).

In New York, the courts are very generous in allowing a party to amend its pleadings. However, there are limits to this generosity. Contact Schlam Stone & Dolan partner John Lundin at if you or a client have a question regarding whether it is too late to amend your claims or answer.