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Current Developments in the Commercial Divisions of the
New York State Courts by Schlam Stone & Dolan LLP
Posted: September 10, 2020

Motion to Amend Granted; Delay and Additional Potential Liability Not Sufficient Grounds for Denial

On September 1, 2020, Justice Borrok of the New York County Commercial Division issued a decision in New York Univ. v. Turner Constr. Co., 2020 NY Slip Op. 51030(U), holding that the need to conduct additional discovery or additional liability were not prejudice for purposes of a motion to amend, explaining:

[T]urning to prejudice, although Turner claims the amendment will prejudice it by re-opening discovery, discovery in this action is not complete and, because the parties chose to complete their expert discovery first, as of the time of this motion Turner had only partially completed the deposition of just one of NYU’s fact witnesses. Further, NYU’s expert reports include a report on damages, including damages to which NYU may be entitled based on Turner’s now asserted gross negligence claim, together with supporting analysis and documentation. In other words, NYU has already disclosed its damages, including those damages to which it may be entitled based on Turner’s alleged gross negligence. In any event, prejudice for purposes of a motion to amend does not occur simply because a defendant is exposed to greater liability or because a defendant has had to expend additional time preparing its case.

The fact that the proposed Amended Complaint seeks punitive damages is similarly not prejudicial. As the First Department explained, a defendant is not prejudiced by the mere fact of exposure to potentially greater liability in the form of punitive damages.

(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 jlundin@schlamstone.com if you or a client have a question regarding whether it is too late to amend your claims or answer.

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