Commercial Division Blog

Posted: December 6, 2023 / Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. Turner / Categories Commercial, Amendment

Court Grants Motion To Amend Since There Was No Prejudice Or Undue Delay

In a Decision and Order, dated October 13, 2023, in Katzoff v. BSP Agency, LLC., Index No. 655823/2020, Justice Margaret A. Chan granted plaintiffs’ motion for leave to amend their complaint to add several defendants.  The Court granted the motion, finding no prejudice or undue delay, and that the claims were not insufficient as a matter of law.  As to prejudice and undue delay, the Court the explained: 

The court rejects BSP's argument that leave to amend should be denied on account of alleged prejudice or lack of a reasonable excuse for delay. First, BSP has insufficiently identified prejudice. It is clearly not the case that the parties have "completed document discovery" (NYSCEF # 97 at 7). As BSP acknowledged, plaintiff’s motion to compel was pending when BSP briefed this motion and has since resulted in BSP being ordered to produce additional documents (NYSCEF # 117). Nor have party-depositions taken place and the note of issue has not been filed. In Pecora v Pecora, upon which BSP relies, the First Department denied leave to amend where, also, the note of issue had not been filed, but there the ten year delay from the time plaintiffs knew of the potential claim, and seven years from the commencement of their action, tangibly prejudiced defendants because relevant documents of a non-party had been destroyed pursuant to a seven-year retention policy thereby hindering defendants from establishing defenses to the new claims (204 AD3d 611, 612 [1st Dept 2022]). Here, BSP identifies no analogous prejudice from plaintiffs' amendment two years after their commencement of this case. BSP's reliance on Panasia is also unavailing. There, the court denied leave to amend where the plaintiff sought leave "for a third time" and the parties had already engaged in summary judgment dispositive motion practice wherein they assembled, laid bare, and revealed their proof, which has not happened in this case (2011 WL 13151668).

Nor is the timing of this motion a basis for denial (see e.g. Johnson v Montefiore Med. Ctr., 203 AD3d 462 [1st Dept 2022] ["delay alone is not a sufficient ground for denying leave to amend"]). It is also notable that the preliminary conference was only held on March 7, 2022, only seven months prior to the initiation of the present motion. The cases BSP cites are distinguishable (Heller v Louis Provenzano, Inc., 303 AD2d 20, 21 [1st Dept 2003] [denying leave to amend where defendants would be "significantly prejudiced" and the motion was "made more than six years after the commencement of the action"]; Oil Heat Inst., 4 AD3d 290 [summary judgment motion pending and prejudice established in that the plaintiff "enlisted the aid of' third party defendants before seeking to add them as direct·defendants, even though they had "requested that they present a 'forceful and appropriate joint prosecution and defense effort'"]; Hanford v Plaza Packaging Corp., 284 AD2d 179, 180 [1st Dept 2001] [rejecting leave to amend where, at "the eleventh hour, [and] ... [o]nly when defendants moved for summary judgment in this proceeding did she seek to amend the complaint"]; Tribeca Space Managers, Inc. v Tribeca Mews Ltd, 200 AD3d 626 [1st Dept 2021] [no abuse in discretion in rejecting motion to amend complaint "more than four years after the action was commenced, more than three years after the note of issue was filed, and more than eight months after the first trial ended in a mistrial"]).

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