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Castor Petroleum, Ltd. v. Petroterminal De Panama, S.A.

Supreme Court, Appellate Division, First Department, New York.
Dec 1, 2011
90 A.D.3d 424 (N.Y. App. Div. 2011)

Opinion

2011-12-1

CASTOR PETROLEUM, LTD., Plaintiff–Appellant, v. PETROTERMINAL DE PANAMA, S.A., Defendant–Respondent.

McGuireWoods LLP, New York (Richard L. Jarashow of counsel), for appellant. Reitler Kailas & Rosenblatt LLC, N.Y. (Jocelyn L. Jacobson of counsel), for respondent.


McGuireWoods LLP, New York (Richard L. Jarashow of counsel), for appellant. Reitler Kailas & Rosenblatt LLC, N.Y. (Jocelyn L. Jacobson of counsel), for respondent.

TOM, J.P., ANDRIAS, CATTERSON, ABDUS–SALAAM, ROMÁN, JJ.

Order, Supreme Court, New York County (Charles E. Ramos, J.), entered July 22, 2011, which granted defendant's motion to preclude plaintiff's revised Statement of Claim, calculating its lost gross margin, unanimously reversed, on the law, with costs, the motion denied, the order of preclusion vacated, and the matter remanded for consideration of alternative sanctions.

The court's preclusion order was an improvident exercise of discretion ( see CPLR 3126; Gradaille v. City of New York, 52 A.D.3d 279, 858 N.Y.S.2d 600 [2008] ). There was no basis for finding that any noncompliance with the preliminary conference order was willful, contumacious, or in bad faith, as would justify precluding plaintiff from presenting evidence in support of its damages claim ( see Sidelev v. Tsal–Tsalko, 52 A.D.3d 398, 860 N.Y.S.2d 96 [2008] ).

Plaintiff was not required to move to amend its interrogatory responses pursuant to CPLR 3101(h), where, although the original response was correct and complete when made, defendant's numerous requests for more detailed calculation of the damages rendered the response incomplete. The statute does not provide for motion practice, except where a party obtains information on the eve of trial, which did not apply here, since no date had been set for trial ( see Maddaloni Jewelers, Inc. v. Rolex Watch U.S.A., Inc., 73 A.D.3d 629, 630, 900 N.Y.S.2d 858 [2010] ), no depositions had been taken, and the note of issue had not been filed.

Plaintiff was also not required to move to amend its complaint, since its revised damages analysis alleged neither a new cause of action, nor any new factual basis for recovery. Instead, the analysis merely included plaintiff's calculation of its lost profits, and the complaint contained sufficient allegations regarding plaintiff's lost profits resulting from the business interruption. Additionally, since the ad damnum clause did not contain a specific amount, but rather sought damages “in excess of $15 million” ( cf. Reid v. Weir–Metro Ambulance Serv., 191 A.D.2d 309, 310, 595 N.Y.S.2d 40 [1993] ), no amendment was required.

Plaintiff was nonetheless entitled to amend its complaint (CPLR 3025[b] ), since the proposed amendment is not palpably insufficient or clearly devoid of merit ( MBIA Ins. Corp. v. Greystone & Co., Inc., 74 A.D.3d 499, 499–500, 901 N.Y.S.2d 522 [2010] ), and defendant cannot legitimately claim surprise or prejudice. The proposed amendment was premised upon the same facts, transactions or occurrences alleged in the complaint ( see Janssen v. Incorporated Vil. of Rockville Ctr., 59 A.D.3d 15, 869 N.Y.S.2d 572 [2008] ).


Summaries of

Castor Petroleum, Ltd. v. Petroterminal De Panama, S.A.

Supreme Court, Appellate Division, First Department, New York.
Dec 1, 2011
90 A.D.3d 424 (N.Y. App. Div. 2011)
Case details for

Castor Petroleum, Ltd. v. Petroterminal De Panama, S.A.

Case Details

Full title:CASTOR PETROLEUM, LTD., Plaintiff–Appellant, v. PETROTERMINAL DE PANAMA…

Court:Supreme Court, Appellate Division, First Department, New York.

Date published: Dec 1, 2011

Citations

90 A.D.3d 424 (N.Y. App. Div. 2011)
933 N.Y.S.2d 662
2011 N.Y. Slip Op. 8684

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