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Late Motion to Amend Complaint Should Have Been Granted–No Showing of Prejudice

The Second Department determined a late motion to amend a complaint should have been granted:

…[T]he plaintiff also proposed an amendment to add a cause of action which alleged facts setting forth a cognizable cause of action to recover damages sounding in intentional tort. This cause of action is not palpably insufficient or patently devoid of merit, and there is no evidence that this amendment would prejudice or surprise [defendants]… . Although the plaintiff delayed in making the motion for leave to amend, mere lateness is not a barrier to the amendment—it must be lateness coupled with significant prejudice to the other side … . [Defendants] cannot claim significant prejudice, since the proposed amendment arises out of the same facts as those set forth in the first amended complaint … . Accordingly, the Supreme Court should have granted that branch of the plaintiff’s cross motion which was for leave to file a second amended complaint, in effect, to add a cause of action to recover damages sounding in intentional tort … . Ciminello v Sullivan, 2014 NY Slip Op 06048, 2nd Dept 9-10-14

 

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