Commercial Division Blog

Posted: May 8, 2023 / Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. Turner / Categories Commercial, Contracts, Insurance, Leave to Amend, Amendment, Duty of Good Faith and Fair Dealing

Motion for Leave to Amend Granted Where no Additional Discovery Needed

On April 5, 2023, Justice Joel M. Cohen of the New York County Commercial Division issued a decision in National Union Fire Insurance Company of Pittsburgh, P.A. Ace American Insurance Company, Index No. 653702/2020. The Court granted Plaintiff National Union’s motion for leave to amend its complaint “to change its claim from breach of the duty good faith and fair dealing under New York law to equitable subrogation under Georgia law.”  The Court held that the motion should be granted as the defendant showed no prejudice or surprise from the proposed amendment. The Court explained:

Aspen opposes Plaintiff's request to amend to assert a claim of equitable subrogation under Georgia law. Aspen has failed, however, to show prejudice or surprise, or that the proposed amendments are palpably insufficient or patently devoid of merit. Plaintiff's proposed Amended Complaint, as Defendant Aspen acknowledges (NYSCEF 70 ¶ 8), does not allege new facts. The parties can utilize the discovery that has already been conducted. Aspen did not specify what additional discovery it needed, or what different discovery it would have sought to prepare a defense.  Thus, Aspen has not shown that it will be prejudiced by the proposed amendment, or "hindered in the preparation of its case" (Valdes v Marbrose Realty, 289 AD2d 28, 29, 734 N.Y.S.2d 24 [1st Dept 2001]).

The Court further noted that the amendment was not “palpably insufficient or patently devoid of merit.” 

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