Opinion
Index No. 650901/2022 Motion Seq. No. 004
08-07-2024
BE A GOOD NEIGHBOR LLC, Plaintiff, v. TORRES MILLWORK & CONSTRUCTION LLC, MAURO TORRES, DAVID LESLIE Defendant.
Rottenberg Lipman Rich, P.C., New York, New York (C. Zachary Rosenberg, Esq., of counsel} for Plaintiff. Zisholtz & Zisholtz, LLC, Garden City, New York (Meng Michelle Cheng, Esq., of counsel) for Defendants.
Unpublished Opinion
MOTION DATE 04/12/2024
Rottenberg Lipman Rich, P.C., New York, New York (C. Zachary Rosenberg, Esq., of counsel} for Plaintiff.
Zisholtz & Zisholtz, LLC, Garden City, New York (Meng Michelle Cheng, Esq., of counsel) for Defendants.
PRESENT: HON. EMILY MORALES-MINERVA, Justice
DECISION + ORDER ON MOTION
HON. EMILY MORALES-MINERVA, J.S.C.
The following e-filed documents, listed by NYSCEF document number (Motion 004) 95, 96, 97, 98, 99, 100, 101, 102, 103, 104, 106, 107, 108, 109, 110, 111, 112, 113, 114, 115, 116, 117, 118 were read on this motion to/for AMEND CAPTION/PLEADINGS.
In this breach of contract action seeking, among other things, $269,035.91 in damages for allegedly defective construction and renovation work, BE A GOOD NEIGHBOR LLC ("plaintiff"), owner of commercial premises at 18 9 Avenue A in New York City, moves pursuant to CPLR § 3025 for leave to amend its complaint to assert two additional causes of action against TORRES MILLWORK & CONSTRUCTION LLC ("TMC"), MAURO TORRES ("Torres"), and DAVID LESLIE ("Leslie") (collectively, "defendants"). Defendants file opposition to the motion. For the foregoing reasons, the motion (seq. no. 004) is granted.
BACKGROUND
Plaintiff's original complaint, filed on February 25, 2022, includes five causes of action for breach of contract, quantum merit, unjust enrichment, trespass, and fraud. The gravamen of plaintiff's complaint is that the work done by defendants on plaintiff's restaurant renovation project ("project") was substandard and had to be completely re-done by other contractors at additional cost and delay to plaintiff. Plaintiff seeks to recover the entire amount paid to the defendants.
As part of its pre-trial discovery, plaintiff deposed defendants TORRES and LESLIE on December 13, 2023, and February 1, 2024, respectively. As relevant here, defendant TORRES testified that defendant TMC did not obtain a safety registration number from the New York City Department of Buildings ("DOB") until "the second part" of 2021 (NY Ct. Elec. Filing [NYSCEF] Doc. No. 98, EBT of TORRES at p. 18, ¶ 6-17) . Defendant TORRES further testified that general contractor OMD Corporation ("OMD") - not TMC - was listed as the general contractor for plaintiff's project, but OMD did not actually perform any work on the project (id. at p. 35-37). According to defendant TORRES, OMD oversaw the process of securing the permits necessary for commencement and completion of the project (id. at p. 39-40). Defendant TORRES described the project site as encompassing "the entire first floor . . . except for the hallway that led upstairs", as well as the basement (id. at p. 59) . The deposition of defendant LESLIE revealed that defendant LESLIE sent plaintiff a certificate of liability insurance listing OMD, not TWC, as the certificate holder (see NYSCEF Doc. No. 99, EBT of defendant LESLIE at p. 62, ¶ 7-20; NYSCEF Doc. No. 100, Certificate of Liability Insurance).
Following the depositions of defendants TORRES and LESLIE, on April 11, 2024, plaintiff filed the instant motion (seq. no. 004) seeking leave to amend their complaint to assert two additional causes of action upon the basis of the deposition testimony. The proposed amended complaint alleges that defendant TMC violated New York City Administrative Code § 28-420.1 by failing to obtain a safety registration number from the DOB, which is required for general contractors performing or supervising certain types of work, such as alteration or enlargement of more than 25% of an existing building's floor area (NYSCEF Doc. No. 103, Proposed Amended Complaint). The proposed amended complaint also alleges that defendants violated New York City Administrative Code § 28-420.7 by falsely listing the project's general contractor as OMD due to defendant TMC lacking a safety registration number (id.).
In its motion, plaintiff asserts that defendants will not be prejudiced by the two additional causes of action because "plaintiff responsibly requested permission to file [the proposed amendment] one week after obtaining the testimony upon which the amendment is based" (NYSCEF Doc. No. 104, Plaintiff's Memorandum of Law in Support of Motion, p. 8). Further, plaintiff contends that, based on the testimony of defendants TORRES and LESLIE at their respective depositions, the new causes of action are meritorious.
In opposition, defendants contend that the proposed amended complaint is palpably insufficient to state a claim against defendants, and devoid of merit. Specifically, defendants contend that a safety registration number was not required for the project and therefore, the lack of such is of no consequence in the instant matter. Upon review of the motion, opposition, and exhibits, this court grants plaintiff's motion to amend the complaint (seq. no. 004) pursuant to CPLR § 3025.
ANALYSIS
It is well settled that leave to amend a pleading should be freely granted absent evidence of substantial prejudice or surprise, or unless the proposed amendment is palpably insufficient or patently devoid of merit (see CPLR § 3025 [b]; JP Morgan Chase Bank, N.A. v Low Cost Bearings N.Y., Inc., 107 A.D.3d 643 [1st Dept 2 013]; MBIA Ins. Corp, v Greystone & Co., Inc., 74 A.D.3d 499 [1st Dept 2010]; Cherebin v Empress Ambulance Serv., Inc., 43 A.D.3d 364 [1st Dept 2007]; Nyahsa Servs., Inc., Self-Ins. Tr. v People Care Inc., 156 A.D.3d 99 [3d Dept 2017]). "On a motion for leave to amend, plaintiff need not establish the merit of its proposed new allegations, but simply show that the proffered amendment is not palpably insufficient or clearly devoid of merit" (MBIA Ins. Corp., 74 A.D.3d at 500) . Further, the party seeking to amend is "not required to support its allegations with evidence or an affidavit of merit" St. Nicholas W. 126 L.P, v Republic Inv. Co., LLC, 193 A.D.3d 488, 489 [1st Dept 2021]; Sorge v Gona Realty, LLC, 188 A.D.3d 474, 475 [1st Dept 2020]).
Applying these principles here, the plaintiff's application to amend its complaint to include two additional causes of action is granted. The proposed amendments are neither patently devoid of merit nor palpably insufficient. While defendants argue that a safety registration number was not required and thus, the proposed new allegations have no merit, the allegations are predicated on the deposition testimony of defendants TORRES and LESLIE, and their testimony reveals that defendants may be liable under the New York City Administrative Code if the alterations included more than 25% of the building's floor area (see Ferrer v Go N.Y. Tours Inc., 221 A.D.3d 499 [1st Dept 2023] [holding: "the legal sufficiency or merits of a proposed amendment to a pleading will not be examined unless the insufficiency or lack of merit is clear and free from doubt"]; see also Battery Bldg. Maint. Co. v 888 Seventh Ave. Assocs., 157 A.D.2d 556 [1st Dept 1990]). Therefore, it can not be said that the proposed amendments are lacking merit.
Further, "[t]he kind of prejudice required to defeat an amendment . . . must . . . be a showing of prejudice traceable not simply to the new matter sought to be added, but also to the fact that it is only now being added. There must be some special right lost in the interim, some change of position or some significant trouble or expenses that could have been avoided had the original pleading contained what the amended one wants to add" (Jacobson v Croman, 107 A.D.3d 644, 645 [1st Dept 2013] citing A.J. Pegno Const. Corp, v City of New York, 95 A.D.2d 655 [1st Dept 1983]) . Defendants have failed to show such prejudice, and have also not demonstrated that the amendment would hinder the preparation of their case or prevent them from taking some measure in support of their position that a safety registration number was not required (see Sosa v Ideal El. Corp., 216 A.D.2d 128 [1st Dept 1995]) .
Lastly, "the fact that a motion to amend is made after a note of issue is filed does not of necessity call for its denial" (Jacobson, 107 A.D.3d at 645; Smith v Indus. Leasing Corp., 124 A.D.2d 413 (3d Dept 1986)] . Here, plaintiff filed the instant motion (seq. no. 004) on April 11, 2024, and subsequently filed the note of issue on July 1, 2024 (NYSCEF Doc. No. 119, Note of Issue) . Given the note of issue was filed while the motion (seq. no. 004) was pending before the court, the parties may stipulate to vacate such if they deem so necessary. Therefore, plaintiff's motion (seq. no. 004) is granted. Accordingly, it is
ORDERED that plaintiff's motion to amend the complaint (seq. no. 004) pursuant to CPLR § 3025 is granted; and it is further
ORDERED that the amended complaint annexed to the moving papers shall be deemed served on defendants upon service of a copy of this order with notice of entry; and it is further
ORDERED defendants shall file an answer to the amended complaint within thirty days of proper service of a copy of this order; and it is further
ORDERED that parties shall file a stipulation to vacate the note of issue within ninety days, if the parties deem so necessary.