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
TENANT DID NOT COUNTERCLAIM FOR ATTORNEY’S FEES IN THE EVICTION PROCEEDINGS, TENANT’S BRINGING A PLENARY ACTION FOR ATTORNEY’S FEES AFTER SUCCESSFULLY DEFENDING THE EVICTION DID NOT VIOLATE THE PROHIBITION AGAINST CLAIM SPLITTING (FOURTH DEPT).
THE SENTENCING COURT SHOULD REDACT FROM THE PRESENTENCE REPORT ANY REFERENCE TO CRIMINAL CONDUCT OF WHICH THE DEFENDANT WAS ACQUITTED (FOURTH DEPT).
LYING TO AN INVESTIGATOR WHO RECORDS THE LIE IN A REPORT CANNOT BE THE BASIS OF A “FALSIFYING A BUSINESS RECORD” CHARGE; ALTHOUGH THE ISSUE WAS NOT PRESERVED THE APPEAL WAS CONSIDERED IN THE INTEREST OF JUSTICE (FOURTH DEPT). ​
THE JUDGE DID NOT HAVE THE AUTHORITY TO GRANT DEFENSE COUNSEL’S REQUEST FOR A VIDEOTAPE OF AN INTERVIEW OF THE CHILD (ALLEGED) VICTIM IN THIS SEXUAL OFFENSE CASE, THE INTERVIEW WAS CONDUCTED BY A PRIVATE PARTY AND WAS DISCOVERABLE ONLY IF IT CONSTITUTED BRADY (EXCULPATORY) MATERIAL, THE JUDGE DID NOT VIEW THE TAPE TO DETERMINE WHETHER IT WAS BRADY MATERIAL (FOURTH DEPT).
THE MAJORITY AFFIRMED DEFENDANT’S CRIMINAL POSSESSION OF A CONTROLLED SUBSTANCE CONVICTION UNDER AN ACCOMPLICE THEORY; DEFENDANT ACCOMPANIED A FRIEND WHO WAS TO SELL COCAINE; TWO DISSENTERS ARGUED THE EVIDENCE OF SHARED INTENT WAS TOO WEAK TO SUPPORT THE CONVICTION (FOURTH DEPT).
Discovery of Trade Secrets Should Have Been Allowed Upon Execution of Confidentiality Agreement, Documents Indispensable to Defense and Not Otherwise Available
SEVERE ABUSE FINDING SUPPORTED BY FATHER’S FAILURE TO SEEK IMMEDIATE MEDICAL CARE FOR THE SERIOUSLY INJURED CHILD (FOURTH DEPT).
HERE THE JUDGE DID NOT HAVE THE AUTHORITY TO SUMMARILY MAKE A SEVERE ABUSE FINDING AND TERMINATE RESPONDENTS’ PARENTAL RIGHTS BASED UPON A PRIOR ABUSE HEARING; SEVERE ABUSE WAS NOT ALLEGED IN THE PRIOR HEARING; A SEVERE ABUSE FINDING MUST BE BASED ON A “CLEAR AND CONVINCING” STANDARD, NOT THE “PREPONDERANCE OF EVIDENCE” STANDARD APPLIED IN THE PRIOR HEARING; IN ADDITION, THE JUDGE SHOULD NOT HAVE ISSUED AN ORDER OF DISPOSITION WITHOUT HOLDING A DISPOSITIONAL HEARING; MATTER REMITTED (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 © 2026 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...