Opinion
Index No. 656194/2020 MOTION SEQ. No. 002
02-14-2024
226 5TH AVE LLC, Plaintiff, v. MAGGIORIC INC., Defendant.
Unpublished Opinion
PRESENT: HON. VERNA L. SAUNDERS, JSC Justice.
DECISION + ORDER ON MOTION
VERNA L. SAUNDERS, JUDGE.
The following e-filed documents, listed by NYSCEF document number (Motion 002) 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 52, 53, 54, 55, 56, 57 were read on this motion to/for AMEND CAPTION7PLEADINGS.
The relevant facts in this case are set forth in detail in the court's decision and order dated August 8, 2022 (NYSCEF Doc. No. 22, decision and order). For the sake of brevity, the salient facts are as follows. Plaintiff commenced this action seeking to recover outstanding rent and additional rent pursuant to a commercial lease. In the decision and order dated August 8, 2022, the court denied plaintiff s motion seeking leave to amend its complaint to add the lease guarantor, Riccardo Maggiore ("guarantor" or "Maggiore"), as a defendant. The court found that the NYC Administrative Code § 22-1005 ("Guaranty law") bars recovery from a personal guarantor for any default from March 7, 2020, through March 31, 2021.
In the instant motion, plaintiff moves, pursuant to CPLR 3025(b), for an order granting it leave to file and serve a supplemental summons and amended verified complaint to add Riccardo Maggiore as a defendant. Plaintiff contends that it need not prove the merits of the amended complaint but, rather that the proposed amendment is not palpably insufficient or clearly devoid of merit. It argues that, at the very least, the Maggiore is liable to plaintiff for defendant's monetary obligations due under the lease accruing from July 1, 2021. In support of this, plaintiff submits the affirmation of its agent, Marc Jacobowitz, wherein he avers that the guarantor is required to pay $364,879.15 in satisfaction of the base rent which accrued for the period between July 1, 2021, through August 2023, as well as additional rent that accrues after June 30, 2021 (NYSCEF Doc. No. 32, Jacobowitz affirmation). Plaintiff submits, as Exhibit D to its papers, a proposed amended complaint showing the proposed changes. Plaintiff asserts that both defendant and guarantor have been on notice of plaintiffs intent to include the guarantor in this action and, thus, there is no prejudice to defendant in allowing the amendment of the complaint (NYSCEF Doc. No. 31, Shaw affirmation in support).
Defendant opposes the motion and cross-moves, pursuant to CPLR 3126, for an order precluding plaintiff from presenting any evidence or testimony related to defendant's interrogatories, and awarding defendant costs, disbursements, and reasonable counsel fees. Defendant asserts that, as a threshold matter, plaintiffs motion should be denied because plaintiff failed to attach a redlined version of the proposed amended complaint, in contravention of CPLR 3025(b). Additionally, defendant posits that the express terms of the guaranty limit the guarantor's liability to the time that defendant occupied the premises, and all parties agree that defendant ceased to occupy the space on or about November 29, 2020; therefore, the amendment is without merit. Maggiore furnishes an affidavit wherein he confirms that the guaranty he signed indicates that he is only liable for claims arising "during [defendant's] use or occupancy of the demised premises" (NYSCEF Doc. No. 45, Maggiore affidavit). In addition, defendant contends that adding the guarantor as a defendant at this stage in the litigation is prejudicial to defendant because plaintiff could have moved for the instant relief at an earlier time; discovery in this action was concluded on August 31, 2023; and plaintiff failed to reserve its right to add additional parties in either the September 21, 2022, Preliminary Conference Order ("PC Order") or in the March 7, 2023, court order modifying the PC Order. Concerning the cross-motion, defendant asserts that plaintiff has refused to provide responses to defendants' interrogatories in contravention of the court's two order setting forth deadlines for interrogatory responses, the first deadline being January 15, 2023, and the second being April 15, 2023. Hence, defendant urges the court to issue a preclusion order, pursuant to CPLR 3126, barring plaintiff from presenting any evidence related to the subject matter of defendant's interrogatories (NYSCEF Doc. No. 44, Levinson affirmation).
In opposition to the cross-motion and in further support of its motion, plaintiff asserts that it inadvertently annexed a clean copy of the proposed amendment twice, instead of the marked-up version. Plaintiff maintains, however, that it has attached the redlined amended complaint and that the court should permit the correction pursuant to CPLR 2001, especially since defendant has not demonstrated any prejudice resulting from the electronic filing error. Plaintiff disputes the claim that the guarantor's liability is limited to the time defendant occupied the space insofar as the express terms of the Guaranty requires that the guarantor's liability is limited to obligations up to delivery of "legal possession" only. Plaintiff claims that, since defendant did not fulfill all the conditions to limit liability, it has pleaded a viable cause of action against the guarantor. Turning now to the cross-motion, plaintiff argues that contrary to defendant's contention, it served responses to defendant's interrogatories, and annexes a copy dated September 27, 2023. Furthermore, plaintiff contends that defendant has not demonstrated any prejudice caused by any delay in plaintiff responding to its interrogatories and that the delay was willful (NYSCEF Doc. No. 52, opposition to cross-motion).
Pursuant to CPLR 3025(b), "[a] party may amend his or her pleading or supplement it by setting forth additional or subsequent transactions or occurrences, at any time by leave of court or by stipulation of all parties. Leave shall be freely given upon such terms as may be just including the granting of costs and continuances. Any motion to amend or supplement pleadings shall be accompanied by the proposed amended or supplemental pleading clearly showing the changes or additions to be made to the pleading."
"A motion for leave to amend a pleading is committed to the sound discretion of the trial court" (Oil Heat Inst, v. RMTS Assocs., LLC, 4 A.D.3d 290, 293 [1st Dept 2004]). "Usually, an application for leave to amend a pleading pursuant to CPLR 3025(b), is governed by a permissive standard, indeed, in the absence of prejudice or surprise resulting directly from the delay in seeking leave, applications to amend are to be freely granted unless the proposed amendment is palpably insufficient or patently devoid of merit" (Favourite Ltd. v. Cico, 208 A.D.3d 99, 108 [1st Dept 2022]; see CPLR 3025 [b]; Cherebin v. Empress Ambulance Serv., Inc., 43 A.D.3d 364, 365 [1st Dept 2007]). "Mere delay is insufficient to defeat a motion for leave to amend" (Sheppard v. Blitman/Atlas Bldg. Corp., 288 A.D.2d 33, 34 [1st Dept 2001]). "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'" (Kocourek v. Booz Allen Hamilton Inc., 85 A.D.3d 502, 504 [1st Dept 2011], quoting Cherebin v. Empress Ambulance Serv., Inc., 43 A.D.3d 364, 365 [1st Dept 2007]).
"CPLR 3126, in turn, governs discovery penalties and applies where a party 'refuses to obey an order for disclosure or willfully fails to disclose information which the court finds ought to have been disclosed'" (Gibbs v. St. Barnabas Hosp., 16 N.Y.3d 74, 79 [2010]; CPLR 3126).
Here, the court accepts plaintiffs late submitted redlined proposed amended complaint since the proposed amendment was described in the moving papers, and hence, failure to submit it with the moving papers was a technical defect (see Medina v. City of New York, 134 A.D.3d 433, 433 [1st Dept 2015]). The proposed amended complaint identifies and defines plaintiffs claims against guarantor and the allegations supporting that claim and, therefore, are not palpably improper or insufficient as a matter of law. The argument of prejudice in allowing Maggiore to be impleaded in this action is also unavailing because defendant was on notice about plaintiffs intent to assert claims against the guarantor, as evidenced by its prior motion seeking said relief. Hence, there is no potential for unfair surprise regarding the relief sought in the instant motion (see Koster, Brady & Nagler, LLP v. Callan, 156 A.D.3d 509, 510 [1st Dept 2017]). Additionally, discovery is still ongoing, and the note of issue has not yet been filed. Therefore, there is no indication that defendant will be hindered or prevented from taking some measure in support of its position if the motion is granted (see Ventura v. Lubman, 217 A.D.3d 616, 617 [1st Dept 2012]; Kocourek v. Booz Allen Hamilton Inc., 85 A.D.3d 502, 504 [1st Dept 2011]; Jacobson v. McNeil Consumer & Specialty Pharms., 68 A.D.3d 652, 654-655 [1st Dept 2009]). Moreover, while it is not lost on this court defendant's position that the surrender limited guarantor's liability, plaintiff need not establish the merits of the proposed amendment for leave to amend its complaint (See Johnson v. Montefiore Med. Ctr., 203 A.D.3d 462, 464 [1st Dep 2022]).
This court notes that the prior motion was denied on the ground that the guarantor's liability, given the time period for the money sought to be recovered, was protected by the Guaranty law. No such bar exists for liability accrued after the timeframe set forth by the Guaranty law. Therefore, defendant has failed to establish that plaintiffs claim against the guarantor is palpably insufficient. Hence, plaintiffs motion to amend the complaint is granted.
Turning now to the cross-motion, the relief sought therein is denied as moot. The Status Conference Order dated January 8, 2024, resolved any questions concerning outstanding interrogatories responses (NYSCEF Doc. No. 59, Status Conference Order). All other arguments have been considered and are either without merit or need not be addressed given the foregoing. Accordingly, it is hereby
ORDERED that the plaintiffs motion for leave to amend the complaint is granted; and it is further
ORDERED that defendant's cross-motion is denied in its entirety; and it is further
ORDERED that the amended complaint, in the form annexed to the motion papers, shall be deemed served upon service of a copy of this order with notice of entry upon all parties who have appeared in the action; and it is further
ORDERED that a supplemental summons and amended complaint, in the form annexed to the motion papers, shall be served, in accordance with the Civil Practice Law and Rules, upon the additional parties in this action within thirty (30) days after service of a copy of this order with notice of entry; and it is further
ORDERED that the action shall bear the following caption:
226 5TH AVE LLC, Plaintiff,
v.
MAGGIORIC INC. and RICCARDO MAGGIORE, Defendants.
and it is further
ORDERED that counsel for the moving party shall serve a copy of this order with notice of entry upon the County Clerk and the Clerk of the General Clerk's Office, who are directed to mark the court's records to reflect the parties being added pursuant hereto; and it is further
ORDERED that such service upon the County Clerk and the Clerk of the General Clerk's Office shall be made in accordance with the procedures set forth in the Protocol on Courthouse and County Clerk Procedures for Electronically Filed Cases (accessible at the "E-Filing" page on the court's website).
This constitutes the decision and order of this court.