Opinion
No. 2019-14482 Index No. 519170/17
07-13-2022
Ray Shields, et al., appellants, v. Kenneth Darpoh, et al., respondents.
Grant & Longworth, LLP, Dobbs Ferry, NY (Kenneth J. Gorman of counsel), for appellants. Shiryak, Bowman, Anderson, Gill & Kadochnikov, LLP, Kew Gardens, NY (Matthew J. Routh of counsel), for respondents.
Grant & Longworth, LLP, Dobbs Ferry, NY (Kenneth J. Gorman of counsel), for appellants.
Shiryak, Bowman, Anderson, Gill & Kadochnikov, LLP, Kew Gardens, NY (Matthew J. Routh of counsel), for respondents.
VALERIE BRATHWAITE NELSON, J.P. ROBERT J. MILLER JOSEPH A. ZAYAS DEBORAH A. DOWLING, JJ.
DECISION & ORDER
In an action, inter alia, for specific performance of a joint venture agreement, the plaintiffs appeal from an order of the Supreme Court, Kings County (Pamela L. Fisher, J.), dated October 24, 2019. The order, insofar as appealed from, granted that branch of the defendants' motion which was for leave to amend their answer to assert the affirmative defense of the statute of frauds.
ORDERED that the order is affirmed insofar as appealed from, with costs.
The plaintiffs commenced this action in October 2017, seeking, inter alia, specific performance of an alleged oral joint venture agreement. The defendants filed an answer with counterclaims dated October 24, 2017. In April 2019, the defendants moved, among other things, for leave to amend their answer to assert the affirmative defense of the statute of frauds. In an order dated October 24, 2019, the Supreme Court, inter alia, granted that branch of the defendants' motion. The plaintiffs appeal.
"Under CPLR 3025(b), a party may amend a pleading 'at any time' by leave of the court" (Redd v Village of Freeport, 150 A.D.3d 780, 781, quoting CPLR 3025[b]), and "[l]eave shall be freely given upon such terms as may be just" (CPLR 3025[b]; see Onewest Bank, FSB v N & R Family Trust, 200 A.D.3d 902; GMAC Mtge., LLC v Coombs, 191 A.D.3d 37, 48). "'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'" (Onewest Bank, FSB v N & R Family Trust, 200 A.D.3d at 903, quoting Lucido v Mancuso, 49 A.D.3d 220, 222; see GMAC Mtge., LLC v Coombs, 191 A.D.3d at 48). "'Mere 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'" (Ditech Fin., LLC v Khan, 189 A.D.3d 1360, 1362, quoting BAC Home Loans Servicing, L.P. v Jackson, 159 A.D.3d 861, 863 [internal quotation marks omitted]; see Park v Home Depot U.S.A., Inc., 183 A.D.3d 645, 646). "The burden of demonstrating prejudice or surprise, or that a proposed amendment is palpably insufficient or patently devoid of merit, falls upon the party opposing the motion" (Ditech Fin., LLC v Khan, 189 A.D.3d at 1362; see Kimso Apts., LLC v Gandhi, 24 N.Y.3d 403, 411; Lennon v 56th & Park [NY] Owner, LLC, 199 A.D.3d 64, 71-74; Park v Home Depot U.S.A., Inc., 183 A.D.3d at 646). "The determination to permit or deny the amendment is committed to the sound and broad discretion of the trial court, and its determination will not lightly be set aside" (Park v Home Depot U.S.A., Inc., 183 A.D.3d at 646 [citations omitted]; see Kimso Apts., LLC v Gandhi, 24 N.Y.3d at 411).
Here, contrary to the plaintiffs' contention, the Supreme Court providently exercised its discretion in granting that branch of the defendants' motion which was for leave to amend their answer to assert the affirmative defense of the statute of frauds. Although the defendants failed to offer a reasonable excuse for their delay in seeking leave to amend their answer (see Ridgewood Sav. Bank v Glickman, 197 A.D.3d 1189), the plaintiffs failed to demonstrate that they were prejudiced or unfairly surprised by the defendants' delay in seeking the proposed amendment (see Kimso Apts., LLC v Gandhi, 24 N.Y.3d at 411; Lennon v 56th & Park [NY] Owner, LLC, 199 A.D.3d at 71-74; Coleman v Worster, 140 A.D.3d 1002, 1003-1004). In addition, the plaintiffs did not assert that the amendment is patently devoid of merit or palpably insufficient (see Lennon v 56th & Park [NY] Owner, LLC, 199 A.D.3d at 71-74; Sudit v Labin, 148 A.D.3d 1073, 1076-1077).
BRATHWAITE NELSON, J.P., MILLER, ZAYAS and DOWLING, JJ., concur.