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.