Opinion
No. 2020-05680 Index No. 30645/15
05-10-2023
Joseph P. Burger, et al., appellants, v. Village of Sloatsburg, etc., respondent.
Lawrence B. McCarron, P.C., Pearl River, NY (Moneesh K. Bakshi of counsel), for appellants. Drake Loeb PLLC, New Windsor, NY (Ralph L. Puglielle, Jr., of counsel), for respondent.
Lawrence B. McCarron, P.C., Pearl River, NY (Moneesh K. Bakshi of counsel), for appellants.
Drake Loeb PLLC, New Windsor, NY (Ralph L. Puglielle, Jr., of counsel), for respondent.
MARK C. DILLON, J.P., LINDA CHRISTOPHER, JOSEPH A. ZAYAS, BARRY E. WARHIT, JJ.
DECISION & ORDER
In an action to recover damages for negligence, nuisance, and trespass, the plaintiffs appeal from a judgment of the Supreme Court, Rockland County (Paul I. Marx, J.), dated June 29, 2020. The judgment, upon an order of the same court dated June 28, 2019, denying the plaintiffs' motion pursuant to CPLR 3025(b) for leave to amend the complaint, and upon an order of the same court dated January 7, 2020, granting the defendant's motion pursuant to CPLR 3211(a)(7) to dismiss the complaint or, in the alternative, for summary judgment dismissing the complaint and denying the plaintiffs' cross-motion pursuant to CPLR 3025(b) for leave to amend the bill of particulars, is in favor of the defendant and against the plaintiffs dismissing the complaint.
ORDERED that the judgment is reversed, on the law, with costs, the plaintiffs' motion pursuant to CPLR 3025(b) for leave to amend the complaint is granted, the plaintiffs' cross-motion pursuant to CPLR 3025(b) for leave to amend the bill of particulars is granted, the defendant's motion pursuant to CPLR 3211(a)(7) to dismiss the complaint or, in the alternative, for summary judgment dismissing the complaint is denied as academic, and the orders dated June 28, 2019, and January 7, 2020, are modified accordingly.
The plaintiffs commenced this action against the defendant in 2015 to recover damages for negligence, nuisance, and trespass. In 2019, the plaintiffs moved pursuant to CPLR 3025(b) for leave to amend the complaint. The defendant opposed the motion. In an order dated June 28, 2019, the Supreme Court denied the motion. The defendant thereafter moved pursuant to 3211(a)(7) to dismiss the complaint or, in the alternative, for summary judgment dismissing the complaint based upon purported judicial admissions in the plaintiffs' motion for leave to amend the complaint. The plaintiffs opposed the motion and cross-moved for leave to amend the bill of particulars. In an order dated January 7, 2020, the court granted the defendant's motion and denied the plaintiffs' cross-motion. The court thereafter entered a judgment dated June 29, 2020, upon the orders, in favor of the defendant and against the plaintiffs dismissing the complaint.
A motion for leave to amend a pleading may be made "at any time" and leave shall be freely given absent prejudice or surprise to the opposing party, unless the proposed amendment is palpably insufficient or patently devoid of merit (CPLR 3025[b]; see R & G Brenner Income Tax Consultants v Gilmartin, 166 A.D.3d 685; Ciminello v Sullivan, 120 A.D.3d 1176). Delay alone is insufficient to bar an amendment to the pleading; "[i]t must be lateness coupled with significant prejudice to the other side" (Edenwald Contr. Co. v City of New York, 60 N.Y.2d 957, 959 [internal quotation marks omitted]; see Coleman v Worster, 140 A.D.3d 1002, 1003). Prejudice requires that "there must be some indication that the defendant has been hindered in the preparation of his [or her] case or has been prevented from taking some measure in support of his [or her] position" (Loomis v Civetta Corinno Constr. Corp., 54 N.Y.2d 18, 23). Furthermore, "[t]he burden of establishing prejudice is on the party opposing the amendment" (R & G Brenner Income Tax Consultants v Gilmartin, 166 A.D.3d at 687, quoting Kimso Apts., LLC v Gandhi, 24 N.Y.3d 403; 411; see Gomez v Principe, 186 A.D.3d 466).
Here, the defendant failed to show that it was prejudiced by the proposed amendments to the complaint or to the bill of particulars (see Kimso Apts., LLC v Gandhi, 24 N.Y.3d at 412; 39 Coll. Point Corp. v Transpac Capital Corp., 27 A.D.3d 454, 455), nor did the defendant establish that the proposed amendments were patently devoid of merit or palpably insufficient (cf. Strunk v Paterson, 145 A.D.3d 700, 701; Longo v Long Is. R.R., 116 A.D.3d 676, 677).
Accordingly, the Supreme Court should have granted the plaintiffs' motion for leave to amend the complaint and their cross-motion for leave to amend the bill of particulars.
Moreover, when an amended complaint has been served, it supersedes the original complaint and becomes the only complaint in the case (see Seidler v Knopf, 186 A.D.3d 886, 888; R & G Brenner Income Tax Consultants v Gilmartin, 166 A.D.3d 685). Therefore, in light of the foregoing determination, the parties' remaining contentions related to the merits of the defendant's motion pursuant to CPLR 3211(a)(7) to dismiss the complaint or, in the alternative, for summary judgment dismissing the complaint are academic.
DILLON, J.P., CHRISTOPHER, ZAYAS and WARHIT, JJ., concur.