You are here: / / MOTION TO AMEND THE COMPLAINT SHOULD HAVE BEEN GRANTED, CRITERIA EXPLAINED,...

MOTION TO AMEND THE COMPLAINT SHOULD HAVE BEEN GRANTED, CRITERIA EXPLAINED, CIVIL CONSPIRACY CLAIM PROPERLY ALLEGED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined plaintiff’s motion to amend the complaint should have been granted. The underlying claim is the defendant’s alleged violation of a non-export agreement in which defendant agreed not to resell a car (purchased from plaintiff) for export to another country. Upon discovery it was learned that defendant was essentially buying cars on behalf of an outfit (Superior) which exported them. Plaintiff sought to amend the complaint to add Superior as a defendant and to add causes of action for civil conspiracy, breach of contract and tortious interference with contract. The Fourth Department explained the analytical criteria for motions to amend a complaint, as well as the necessary allegations for civil conspiracy (which, standing alone, is not a recognized tort in New York):

​

“Leave to amend a pleading should be freely granted in the absence of prejudice to the nonmoving party where the amendment is not patently lacking in merit” …  Although defendant contends that plaintiff was required to ” make an evidentiary showing that the claim[s] [could] be supported’ “… , or to submit an affidavit of merit … , plaintiff correctly relies on the more recent cases from this Court, which provide that “[a] court should not examine the merits or legal sufficiency of the proposed amendment unless the proposed pleading is clearly and patently insufficient on its face” … . …

​

 In denying that part of the motion seeking leave to amend the complaint, the court concluded that plaintiff could not demonstrate any actual damages as a result of the breach of the Nonexport Agreement. We agree with plaintiff that the court improperly decided the merits of a disputed issue of fact in the context of a motion seeking leave to amend the complaint … . …

​

Contrary to defendant’s further contention, the proposed causes of action for civil conspiracy and tortious interference with a contract are not patently lacking in merit. Although “New York does not recognize civil conspiracy to commit a tort as an independent cause of action” … , such a “claim” or “cause of action” may be asserted where, as here, there are allegations of a ” primary tort, plus the following four elements: (1) an agreement between two or more parties; (2) an overt act in furtherance of the agreement; (3) the parties’ intentional participation in the furtherance of a plan or purpose; and (4) resulting damage or injury’ ” …  Here, plaintiff alleged a primary tort of tortious interference with a contract … , and the allegations supporting that tort as well as the cause of action for civil conspiracy are not “palpably insufficient or patently devoid of merit” … . Great Lakes Motor Corp. v Johnson, 2017 NY Slip Op 08970, Fourth Dept 12-22-17

 

CIVIL PROCEDURE (MOTION TO AMEND THE COMPLAINT SHOULD HAVE BEEN GRANTED, CRITERIA EXPLAINED, CIVIL CONSPIRACY CLAIM PROPERLY ALLEGED (FOURTH DEPT))/COMPLAINT, MOTION TO AMEND (MOTION TO AMEND THE COMPLAINT SHOULD HAVE BEEN GRANTED, CRITERIA EXPLAINED, CIVIL CONSPIRACY CLAIM PROPERLY ALLEGED (FOURTH DEPT))/CIVIL CONSPIRACY  (MOTION TO AMEND THE COMPLAINT SHOULD HAVE BEEN GRANTED, CRITERIA EXPLAINED, CIVIL CONSPIRACY CLAIM PROPERLY ALLEGED (FOURTH DEPT))

You might also like
PLAINTIFF STRUCK BY A LACROSSE BALL THROWN BY A COACH DURING PRACTICE, THE ACTION WAS NOT PRECLUDED BY EITHER THE SIGNED WAIVER OR THE DOCTRINE OF ASSUMPTION OF THE RISK (FOURTH DEPT).
Court Review of Sufficiency of Evidence Before a Grand Jury Explained
VIDEO SURVEILLANCE SHOWING DEFENDANT ENTERING THE MALL WITH EMPTY BAGS FROM A STORE THAT WAS NOT IN THE MALL AND LEAVING WITH ITEMS IN THE BAGS DID NOT AMOUNT TO “REASONABLE SUSPICION” JUSTIFYING THE VEHICLE STOP; TWO-JUSTICE DISSENT (FOURTH DEPT).
Owner/Officer of Company Can Be Personally Liable for Toxic Emissions Released by Company.
DEFENDANT WAS NOT ADVISED THE SENTENCE TO WHICH HE AGREED WHEN PLEADING GUILTY WAS FIXED REGARDLESS OF THE OUTCOME OF THE SECOND VIOLENT FELONY OFFENDER HEARING, PLEA VACATED (FOURTH DEPT).
COUNTY COURT’S DETERMINATION THE EVIDENCE BEFORE THE GRAND JURY WAS LEGALLY SUFFICIENT IS NOT REVIEWABLE AFTER A CONVICTION BASED UPON LEGALLY SUFFICIENT EVIDENCE (FOURTH DEPT).
Improper to Characterize Trial as “Search for Truth”
CELLINO’S PETITION FOR DISSOLUTION OF CELLINO & BARNES PC PROPERLY SURVIVED A MOTION FOR SUMMARY DISMISSAL (FOURTH DEPT).

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2024 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

SUPREME COURT DOES NOT HAVE THE POWER TO CONSIDER THE MERITS OF AN ARBITRATION... AN ATTEMPT TO SERVE WALTER WITKOWSKI JR AT THE ADDRESS OF WALTER WITKOWSKI SR...