You are here: / / THE TEN-MONTH DELAY BEFORE SEEKING TO AMEND THE COMPLAINT AND DEFENDANT’S...

THE TEN-MONTH DELAY BEFORE SEEKING TO AMEND THE COMPLAINT AND DEFENDANT’S SPECULATIVE ALLEGATION OF PREJUDICE WERE NOT SUFFICIENT GROUNDS FOR DENYING THE MOTION TO AMEND (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff’s motion to amend the complaint should have been granted. The ten-month delay in seeking the amendment was not a sufficient ground for denying the motion:

A party may amend a pleading “at any time” by leave of the court (CPLR 3025[b] …). “‘In the absence of prejudice or surprise resulting directly from the delay in seeking leave, such applications are to be freely granted unless the proposed amendment is palpably insufficient or patently devoid of merit'” …  The determination to permit or deny amendment is committed to the sound discretion of the trial court … . “‘In exercising its discretion, the court should consider how long the party seeking the amendment was aware of the facts upon which the motion was predicated [and] whether a reasonable excuse for the delay was offered'” … . However, “[m]ere lateness is not a barrier to the amendment. It must be lateness coupled with significant prejudice to the other side, the very elements of the laches doctrine” … . “The party opposing the application has the burden of establishing prejudice, which requires a showing that the party has been hindered in the preparation of [its] case or has been prevented from taking some measure in support of [its] position”  … .

… [Defendant] failed to demonstrate that it would be surprised or prejudiced by the proposed amendments … . The details concerning the communications between the parties regarding the plaintiff’s claims were “premised upon the same facts, transactions or occurrences alleged in the original complaint” … and merely elaborated on the same theory of liability alleged in the original complaint … . [Defendan’s] contention that evidence may have been lost in the months following the independent medical examination was too speculative to demonstrate any prejudice from the plaintiff’s delay … . Flowers v Mombrun, 2023 NY Slip Op 00206, Second Dept 1-18-23

Practice Point: Here the ten-month delay before moving to amend the complaint was not a sufficient ground for denial of the motion. The defendant’s allegation of prejudice caused by the delay was speculative.

 

You might also like
CONDOMINIUM BOARD STATED BREACH OF CONTRACT CAUSES OF ACTION AGAINST THE FIRM WHICH INSPECTED THE CONDOMINIUMS DURING CONSTRUCTION 2ND DEPT.
JUDGE SHOULD NOT HAVE, SUA SPONTE, RAISED THE STATUTE OF LIMITATIONS DEFENSE, IF THE DEFENSE IS NOT RAISED IN THE PLEADINGS IT IS WAIVED, JUDGE CANNOT TAKE JUDICIAL NOTICE OF IT (SECOND DEPT).
NO NOTICE OF CLAIM REQUIRED FOR ALLEGED VIOLATIONS OF 42 USC 1983, STATUTE OF LIMITATIONS EXPIRED ON ASSAULT AND BATTERY, PERMISSION TO FILE LATE NOTICE OF CLAIM ON THE REMAINING STATE CHARGES SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT). ​
A FAMILIAL RELATIONSHIP BETWEEN THE SEX OFFENDER AND THE VICTIM (HERE DEFENDANT’S YOUNG STEPDAUGHTER) DOES NOT INCREASE THE RISK TO THE PUBLIC AND THEREFORE CANNOT, STANDING ALONE, BE THE BASIS FOR AN UPWARD DEPARTURE FROM THE RISK ASSESSMENT GUIDELINES (SECOND DEPT). ​
Best Interests of Child Allowed Mother’s Relocation
RPAPL 1306 REQUIRES INFORMATION TO BE FILED WITH THE SUPERINTENDENT OF FINANCIAL SERVICES WITHIN THREE BUSINESS DAYS OF THE MAILING OF THE NOTICE OF FORECLOSURE; THE FILING IS A CONDITION PRECEDENT TO A FORECLOSURE ACTION; HERE THE FILING WAS EIGHT DAYS LATE, REQUIRING DISMISSAL OF THE COMPLAINT (SECOND DEPT).
EXPERT AFFIDAVIT STATING PLAINTIFF PEDESTRIAN DID NOT LOOK FOR TRAFFIC BEFORE CROSSING WAS SPECULATIVE AND DID NOT RAISE A QUESTION OF FACT, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT PROPERLY GRANTED IN THIS TRAFFIC ACCIDENT CASE (SECOND DEPT).
MORTGAGE WAS AMBIGUOUS BECAUSE IT DESCRIBED THE SUBJECT PROPERTY BY A SINGLE LOT NUMBER AND BY METES AND BOUNDS WHICH ENCOMPASSED TWO LOTS, QUESTION OF FACT ABOUT THE INTENT OF THE PARTIES PRECLUDED SUMMARY JUDGMENT (SECOND 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

PLAINTIFF IN THIS TRAFFIC ACCIDENT CASE ALLEGED DEFENDANT ATTORNEY NEGLIGENTLY... PLAINTIFF BANK DID NOT DEMONSTRATE THE NOTICE OF FORECLOSURE WAS MAILED IN ACCORDANCE...