Opinion
INDEX NO. 651969/2015
05-08-2019
COMMODORE CONSTRUCTION CORP., Plaintiff, v. CITY OF NEW YORK, CITY OF NEW YORK, ROGERS MARVEL ARCHITECTS, PLLC,HILL INTERNATIONAL, INC.,SPECIAL INSPECTIONS CORP., SPECIAL INSPECTIONS CORP., ANS CONSULTANTS, INC.,ROGERS MARVEL ARCHITECTS, PLLC,ROBERT SILMAN ASSOCIATES, P.C.,ROBERT SILMAN ASSOCIATES STRUCTURAL ENGINEERS, D.P.C.,COUNSILMAN HUNSAKER & ASSOCIATES, LANGAN ENGINEERING & ENVIRONMENTAL SERVICES, P.C.,LANGAN ENGINEERING & ENVIRONMENTAL SERVICES, INC.,LANGAN ENGINEERING & ENVIRONMENTAL SURVEYING AND LANDSCAPE ARCHITECTURE D.P.C.,JAN HIRD POKORNY ASSOCIATES, INC.,COLLADO ENGINEERING, P.C.,RAY PALMER ASSOCIATES, INC.,GRECO BROS. READY MIX CONCRETE CO. INC.,CARDRONA, INC.,GOTHIC STONE RESTORATION, INC. Defendant.
NYSCEF DOC. NO. 276 PRESENT: HON. ANDREW BORROK Justice MOTION DATE 02/19/2019 MOTION SEQ. NO. 009
DECISION AND ORDER
The following e-filed documents, listed by NYSCEF document number (Motion 009) 227, 228, 229, 230, 231, 232, 233, 234, 239, 240, 241, 242, 243, 244, 245, 246, 247, 248, 249, 250, 251, 252, 253, 254, 255, 256, 257, 258, 259, 260, 261, 262, 263, 264, 265, 266, 267, 268, 269, 270, 271, 272, 273, 275 were read on this motion to/for AMEND CAPTION/PLEADINGS. Upon the foregoing documents and for the reasons set forth on the record (5/6/2019), the City of New York's (the City) motion to amend its complaint is denied. The City seeks leave to supplement its complaint with additional facts, clarify allegations against the original defendants and to assert direct claims against the following third party defendants: Silman Associates P.C., Robert Silman Associates Structural Engineers, D.P.C., Counsilman-Hunsaker & Associates, Langan Engineering and Environmental Services, P.C., Langan Engineering and Environmental Services, Inc., Langan Engineering, Environmental, Surveying and Landscape Architecture, D.P.C., and Jan Hird Pokorny Associates, Inc. (hereinafter, collectively, the Design Subconsultants). Leave to amend under CPLR § 3025 (b) is committed to the sound discretion of the trial court (Colon v Citicorp Inv. Servs., 283 AD2d 193, 193 [1st Dept 2001], citing Edenwald Contr. Co. v New York, 60 NY2d 957, 959 [1983]). Leave to amend pleadings should be freely given unless there is prejudice or surprise resulting from the delay to the opposing party or if the proposed amendment is "palpably improper or insufficient as a matter of law" (McGhee v Odell, 96 AD3d 449, 450 [1st Dept 2012]). In this case, the City proposes to amend its complaint nearly four years after filing this lawsuit, following 28 party depositions after extensive document discovery which extensive document discovery followed pre-litigation and mediation (NYSCEF Doc. No. 241, ¶¶ 3-13). At this late stage in the litigation, when discovery is nearly completed, amendment of the City's complaint to bring direct claims against the third-party defendants would be highly prejudicial. While the City asserts that the Design Subconsultants' defense of the claims will remain the same if leave to amend is granted - i.e., that the Design Subconsultants will be liable only if the City establishes liability by RMA - the court disagrees. To date, the Design Subconsultants have defended the action under the expectation of limited third-party exposure. The City now seeks to assert new theories of liability for professional malpractice and negligent misrepresentation directly against the Design Subconsultants. To wit, and as the parties argued at oral argument, the depositions and entire litigation strategy over this approximately four year period would have been conducted differently. The City's additional claims "would involve different elements and standards of proof and potentially subject [third-party] defendants to a far greater and different dimension of liability than would otherwise have been the case" (Heller v Louis Provenzano, Inc., 303 AD2d 20, 23 [1st Dept 2003] [denying the plaintiff leave to amend because defendants would suffer significant prejudice by an amendment that imposed a new theory of liability after a six year delay]). Notably, no facts emerged during discovery that were not known to the City at the outset of this action, before bringing this motion to amend (Napoli v Canada Dry Bottling Co., 166 AD2d 696, 697 [2d Dept 1990] [holding that "delay is not excused where, as here, the plaintiffs fail to realize the applicability of certain legal theories to the facts of the case and therefore fail to assert those theories in a timely manner."]). In any event, the City's proposed claims for professional malpractice and negligent misrepresentation are devoid of merit as there is no privity between the City and the third-party defendants (see Greenstreet of NY, Inc. v Davis, 166 AD3d 470 [1st Dept 2018]). In addition, the allegations in support of the additional claims for negligent misrepresentation and malpractice are entirely conclusory and insufficient. In fact, the negligent misrepresentation does not even allege a single misrepresentation. Finally, Pier 59 Studios, L.P. v Chelsea Piers, L.P., which is cited by the City on reply, is inapposite as, in that case, the proposed amendment was based on newly discovered evidence, which is not the case here (40 AD3d 363 [1st Dept 2007]). Accordingly, it is ORDERED that the City of New York's motion for leave to amend the complaint is denied. 5/8/2019
DATE
/s/ _________
ANDREW BORROK, J.S.C.