Opinion
2003-206 S C.
Decided December 19, 2003.
Appeal by plaintiff from so much of an order of the District Court, Suffolk County (E. Sperzel, J.), entered April 16, 2002, denying her motion to amend her complaint, and, as limited by her brief, from so much of an order of the same court (P. Hensley, J.), entered December 16, 2002, as granted the motion by defendant Nationwide Auto Sales Leasing Corp. to dismiss the complaint.
Appeal from the order of December 16, 2002 unanimously dismissed as academic in light of the disposition herein.
PRESENT: DOYLE, P.J., WINICK and SKELOS, JJ.
Order of April 16, 2002 unanimously reversed without costs and plaintiffs motion for leave to serve an amended complaint granted on condition that plaintiff serve and file same within 30 days of the date of the order entered hereon.
Plaintiff originally brought the present action for breach of contract and warranty and intentional misrepresentation stemming from the sale of a used car to her by defendants. Only defendant Nationwide Auto Sales Leasing Corp. ("Nationwide") was served in the action.
Thereafter, plaintiff sought leave to serve and file an amended complaint. Preliminarily, we note that the requirement that a party's affidavit be submitted upon a motion for leave to amend a pleading has been read into the law (CPLR 3025) in the interest of judicial economy, in order to address the merits of patently deficient pleading amendments ( see Cushman Wakefield v. John David. Inc., 25 AD2d 133, 135). Particularly where, as here, the original complaint gave notice of the transactions and occurrences to be proved pursuant to the amended complaint, the lack of an affidavit of a party is not fatal to a motion for leave to amend ( English v. Ski Windham Operating Corp., 263 AD2d 443). In any event, the verified original pleading, as well as the verified proposed amended pleading herein, may be utilized as an affidavit of the party involved (CPLR 105 [u]; see e.g., Morgan v. Prospect Park Assocs. Holdings, 251 AD2d 306; Frost v. Monter, 202 AD2d 632).
In denying leave to amend, the court below narrowly read the proposed amended complaint as alleging "conspiracy," without any allegation of defendant Nationwide's independently tortious behavior. However, the complaint cannot be fairly read to even allege this cause of action; plaintiff, in the paragraph in the first count employing this term, was clearly, and merely, trying to allege that defendant Nationwide bears some actionable relationship to the contract despite the fact that the name on the contractual documents (copies of which were annexed to the motion papers with the proposed amended complaint) is that of defendant C.K. Funding Corporation. Nor did Nationwide provide any evidence to the contrary upon either motion at issue here, contenting itself with describing the relationship as "arm's length" and speculating that C.K. Funding is now out of business. Finally, Nationwide did not make any showing of prejudice sufficient to defeat the motion for leave to amend.
Leave to amend is to be freely granted absent unfair prejudice or surprise to the opposing party ( see e.g., Seaman Corp. v. Binghamton Say. Bank, 243 AD2d 1027). Where, as here, no such prejudice is demonstrated and the proposed amendments are not plainly without merit ( see Thomas Crimmins Contr. Co. v. City of New York, 74 NY2d 166), it was an abuse of discretion for the court to deny plaintiffs motion ( see e.g., Noanio Clothing v. L M Kids Fashion, 207 AD2d 436). The proposed amended complaint states cognizable causes of action for fraudulent inducement and violation of General Business Law § 198-b, and raises several theories of recovery for common law breach of contract and pursuant to General Business Law § 198-b ( see e.g., Kepenis v. Ro-Zap Enters., 179 Misc 2d 874 [Sup Ct, Saratoga County 1998]).
The various defenses ( see generally General Business Law § 198-b [c] [1] [a], [b]) Nationwide raised in opposition to the motion to amend the complaint are factual in nature and are the proper subject of discovery, not of a motion to amend or to dismiss. In this regard, the record does not support the finding of the court below in the April 16, 2002 that "the car was brought in for service after the statutory warranty expired (General Business Law § 198-b [b] [1] [b])" and that therefore no cause of action lay pursuant to that section. The cited section defines a minimum warranty period that must be provided to the consumer, not a limitation on actions pursuant to the Used Car Lemon Law, which has a statute of limitations of four years from delivery of the vehicle (General Business Law § 198-b [f] [6]). Plaintiff alleged that a 24-month 24,000-mile warranty, running from July 16, 1997, was in effect, and that she "revoked acceptance" of the vehicle in February 1998, after a number of attempts to have it repaired.
The appeal from the order of December 16, 2002, dismissing the original complaint, is dismissed as academic in light of the disposition herein.