Opinion
3479, 110893/10.
03-23-2017
DANIEL R. WOTMAN & ASSOCIATES, PLLC, Plaintiff–Respondent, v. Janet CHANG, Defendant–Appellant.
Vernon & Ginsburg, LLP, New York (Mel B. Ginsburg of counsel), for appellant. Steinberg & Cavaliere, LLP, White Plains (Ronald W. Weiner of counsel), for respondent.
Vernon & Ginsburg, LLP, New York (Mel B. Ginsburg of counsel), for appellant.
Steinberg & Cavaliere, LLP, White Plains (Ronald W. Weiner of counsel), for respondent.
TOM, J.P., FRIEDMAN, MAZZARELLI, KAPNICK, KAHN, JJ.
Order, Supreme Court, New York County (George J. Silver, J.), entered December 23, 2015, which granted plaintiff's motion for summary judgment dismissing defendant's counterclaim for legal malpractice and denied defendant's cross motion to amend her counterclaim, unanimously affirmed, without costs.
In this action commenced by plaintiff to recover legal fees, defendant asserted a counterclaim for legal malpractice. Plaintiff moved for summary judgment dismissing that counter-claim and in response, defendant cross-moved for leave to amend the counterclaim to expand and alter her theory of recovery.
Supreme Court providently exercised its discretion in denying defendant leave to amend her legal malpractice counterclaim. The motion for leave to amend came years after the counterclaim was first asserted and well after the conclusion of discovery. Moreover, defendant failed to articulate a reasonable excuse for her delay in amending the counterclaim and was unquestionably in possession of all the facts she needed to seek leave at an earlier time in the litigation (see Holliday v. Hudson Armored Car & Courier Serv., 301 A.D.2d 392, 753 N.Y.S.2d 470 [1st Dept.2003], lv. dismissed, denied 100 N.Y.2d 636, 769 N.Y.S.2d 196, 801 N.E.2d 417 [2003] ).
The motion court also properly granted plaintiff summary judgment dismissing the counterclaim. Defendant's proof failed to demonstrate that plaintiff was negligent in any way (Brooks v. Lewin, 21 A.D.3d 731, 734, 800 N.Y.S.2d 695 [1st Dept.2005], lv. denied 6 N.Y.3d 713, 816 N.Y.S.2d 749, 849 N.E.2d 972 [2006] ).