​ THE COMPLAINT ALLEGED AN ORAL JOINT VENTURE AGREEMENT BUT DID NOT ALLEGE THE PARTIES AGREED TO SHARE THE LOSSES; THE STATUTE OF FRAUDS THEREFORE APPLIED AND THE COMPLAINT WAS DISMISSED; PLAINTIFF’S MOTION TO AMEND THE COMPLAINT TO ALLEGE THE PARTIES AGREED TO SHARE THE LOSSES SHOULD HAVE BEEN GRANTED (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined the plaintiff’s motion to amend the complaint should have been granted. The initial breach of contract complaint was dismissed because it was not alleged the parties to the oral joint venture agreed to share the losses (therefore the statute of frauds applied to the agreement). The amendment sought to include the allegation the parties agreed to share the losses:

… Supreme Court improperly denied the plaintiff’s motion on the basis that the breach of contract causes of action in the amended complaint had previously been dismissed … . Moreover, under the circumstances here, the court should have granted the plaintiff’s motion. The defendants cannot be prejudiced or surprised by the proposed amendments, which were premised upon the same facts, transactions, or occurrences alleged in the amended complaint and “simply sought to cure the deficiencies cited by the Supreme Court in its earlier order which resulted in the dismissal” … . Further, the plaintiff explained that the omission of a loss-sharing allegation from the amended complaint was inadvertent, and he diligently sought to amend the pleading to correct the defect … . Benjamin v 270 Malcolm X Dev., Inc., 2023 NY Slip Op 01275, Second Dept 3-15-23

Practice Point: In the absence of prejudice amendment of a complaint should be allowed. Here the complaint was dismissed because plaintiff did not allege the parties agreed to share the losses in an oral joint venture agreement which triggered the statute of frauds. Plaintiff’s motion to amend the complaint to allege the parties agreed to share the losses should have been granted.