Opinion
2014-08-8
Karen McGRATH and Steven K. Foley, Plaintiffs–Respondents, v. TOWN OF IRONDEQUOIT, Defendant–Appellant.
Lippman O'Connor, Buffalo (Gerard E. O'Connor of Counsel), for Defendant–Appellant. John P. Lomenzo, Jr., Penfield, for Plaintiffs–Respondents.
Lippman O'Connor, Buffalo (Gerard E. O'Connor of Counsel), for Defendant–Appellant. John P. Lomenzo, Jr., Penfield, for Plaintiffs–Respondents.
PRESENT: SCUDDER, P.J., SMITH, CARNI, LINDLEY, and WHALEN, JJ.
MEMORANDUM:
This action arises from a landslide that occurred on a steeply-sloped parcel of real property owned by defendant, and which allegedly caused part of plaintiffs' adjacent property to subside. Plaintiffs seek damages for diminution of value and the cost of repairs to their property, asserting that defendant created and negligently maintained a private nuisance resulting in the landslide. Supreme Court granted plaintiffs' motion for an order vacating the note of issue and certificate of readiness and for leave to serve a second amended complaint.
We note at the outset that we dismiss the appeal from the order insofar as it granted that part of plaintiffs' motion seeking to vacate the note of issue and certificate of readiness. On appeal, defendant seeks, inter alia, reinstatement of the note of issue and certificate of readiness, but a postargument submission by plaintiffs' attorney establishes that a new note of issue and certificate of readiness have been filed. Consequently, “we conclude that the rights of the parties cannot be affected by the determination of [that part of the] appeal[,] and it is therefore moot” (Matter of Hearst Corp. v. Clyne, 50 N.Y.2d 707, 714, 431 N.Y.S.2d 400, 409 N.E.2d 876;see generally Matter of Anonymous v. New York City Health & Hosps. Corp., 70 N.Y.2d 972, 974, 525 N.Y.S.2d 796, 520 N.E.2d 515,rearg. denied71 N.Y.2d 994, 529 N.Y.S.2d 278, 524 N.E.2d 879).
Contrary to defendant's contention, we also conclude that the court properly granted that part of the motion seeking leave to serve a second amended complaint. “Generally, [l]eave 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” ( Anderson v. Nottingham Vil. Homeowner's Assn., Inc., 37 A.D.3d 1195, 1198, 830 N.Y.S.2d 882,amended on rearg. 41 A.D.3d 1324, 840 N.Y.S.2d 880 [internal quotation marks omitted]; seeCPLR 3025[b] ). Although plaintiffs did not make the motion promptly after service of the note of issue and certificate of readiness, it is well settled that “ ‘[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’ ” (Edenwald Contr. Co. v. City of New York, 60 N.Y.2d 957, 959, 471 N.Y.S.2d 55, 459 N.E.2d 164, quoting Siegel, Practice Commentaries, McKinney's Cons. Laws of N.Y., Book 7B, CPLR 3025:5, p.477). “Prejudice requires ‘some indication that the defendant has been hindered in the preparation of his case or has been prevented from taking some measure in support of his position’ ” ( Cherebin v. Empress Ambulance Serv., Inc., 43 A.D.3d 364, 365, 841 N.Y.S.2d 277). Here, defendant failed to establish any prejudice arising from plaintiffs' lateness, and thus the court properly granted plaintiffs leave to serve a second amended complaint.
It is hereby ORDERED that said appeal from the order insofar as it concerns the note of issue and certificate of readiness is unanimously dismissed and the order is affirmed without costs.