Commercial Division Blog

Posted: March 10, 2023 / Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. Turner / Category Motion to Amend

Additional Discovery and Lengthier Litigation Not Prejudice Sufficient to Defeat Motion for Leave to Amend

On February 15, 2023, Justice Melissa A. Crane of the New York County Commercial Division issued a decision in State of N.Y. ex rel. Phone Administrative Services, Inc. v. Verizon N.Y., Inc., 2023 NY Slip Op 30473(U), granting plaintiff leave to amend and rejecting defendants' arguments that additional discovery and lengthier litigation constituted prejudice, explaining:

"Permission to amend pleadings should be 'freely given' (Edenwald Contracting Co. v New York, 60 N.Y.2d 957, 959, 459 N.E.2d 164, 471 N.Y.S.2d 55 [1983], quoting CPLR 3025 [b]). "Mere lateness is not a barrier to the amendment. It must be lateness coupled with significant prejudice to the other side" (id. [citation omitted]). Neither additional pre-note of issue discovery nor lengthier litigation warrant denial [*2] of a motion for leave to amend (see e.g. St. Nicholas W. 126 L.P., v Republic Invest. Co., [**2] LLC, 193 AD3d 488, 146 N.Y.S.3d 612 [1st Dept 2021]). The opposing party bears the burden to overcome the heavy presumption in favor of granting leave to amend (see e.g. McGee v Odell, 946 NYS2d 134, 135 [1st Dept 2012]).

Here, the Verizon defendants have not established that they will be so prejudiced by the amendment that denial is warranted. The Verizon defendants point to only additional discovery that would delay this case to demonstrate the purported prejudice. The note of issue has not yet been filed and the parties, including Verizon, have repeatedly asked this court for discovery extensions. The Verizon defendants also have not established that the proposed amendment will have hindered them in the preparation of their case, or prevented them from supporting their positions (see e.g. Tri-Tec Design, Inc. v Zatec Corp., 123 AD3d 420, 420 [1st Dept 2014]). The court declines to deny this motion because some further discovery and potential delays will result from the additional of the MCI entities as defendants.

Leave to amend a pleading is freely granted, and a party opposing a motion for leave to amend must show lateness coupled with prejudice. As this case shows, that a party may be exposed to additional discovery or further litigation is not prejudice. Contact the Commercial Division Blog Committee at if you or a client have questions concerning a motion for leave to amend.