Opinion
No. 12–0941.
03-25-2016
Gordon HARRIS, Plaintiff, v. FINSTER, INC., Mark Tornello, Susan Tornello, and Earthbound Landscape and Trees, Ltd., Defendants.
Michael Biscone, Esq., Biscone Law Firm, Ravena, for Plaintiff. Earl T. Redding, Esq., Roemer Wallens Gold & Mineaux LLP, Albany, for Defendants.
Michael Biscone, Esq., Biscone Law Firm, Ravena, for Plaintiff.
Earl T. Redding, Esq., Roemer Wallens Gold & Mineaux LLP, Albany, for Defendants.
LISA M. FISHER, J.
Plaintiff moves via Order to Show Cause to amend the Complaint to conform to the evidence. The proposed amendment is annexed to the moving papers and claims Defendants' actions have impeded Plaintiff's “use and enjoyment” of his premises, caused $4,200 in damages, violated “Real Property Actions and Proceedings Laws[,]” and now seeks counsel fees. Defendants vehemently oppose such amendment.
From the moving papers, it appears the impetus for the motion was at least, in part, from the report of Plaintiff's expert John Halsted. Such report was issued in September 2015 and provides—for the first time—notice of monetary damages regarding remedial work done on Plaintiff's property. However, Plaintiff waited until February 19, 2016 to move to amend the caption-which is less than 60 days before the trial.
Needless to say, the Court less than enthusiastically embraces such motion.
However, leave to amend “shall be freely given upon such terms as may be just including the granting of costs and continuances ” (CPLR R. 3025[b] [emphasis added] ). Similarly, “[t]he court may permit pleadings to be amended before or after judgment to conform them to the evidence, upon such terms as may be just including the granting of costs and continuances ” (CPLR R. 3025 [c] [emphasis added] ). Such amendment may be made “even if the amendment substantially alters the theory of recovery” (Dittmar Explosives v. A.E. Ottaviano, Inc., 20 N.Y.2d 498, 502–03 [1967] ).
Further, leave to amend may be made “at any time by leave of court” (CPLR R. 3025[b] ), and has been permitted on the eve of trial, during, or even after trial. (Murray v. City of New York, 43 N.Y.2d 400, [1977] [“Where no prejudice is shown, the amendment may be allowed during or even after trial.' “], quoting Dittmar Explosives, 20 N.Y.2d at 502 ). Application to amend pleadings are within the sound discretion of the court, which is given “considerable latitude in exercising their discretion” (Matter of Von Bulow, 63 N.Y.2d 221, 224 [1984] ; see Murray, 43 N.Y.2d at 405 [noting courts considering motions to conform pleadings pursuant to CPLR R. 3025 are afforded “the widest possible latitude” in permitting or denying such amendment] ).
Contrary to Plaintiff's claim, there is prejudice to Defendants. Prejudice is defined as the inability to defend the matter on the merits. (See generally Isereau v. Brushton–Moira School Dist., 6 AD3d 1004, 1006 [3d Dept 2004] ; Sutton v. Town of Schuzler Falls, 185 A.D.2d 430, 431 [3d Dept 1992].) It is without question that Defendants have not had an opportunity to conduct disclosure regarding the newly alleged monetary damages, as well as Plaintiff's loss of “use and enjoyment” of his property now alleged in the amended Complaint. (See Loomis v. Civeta Corrino Constr. Corp., 54 N.Y.2d 18, 23 [1981] [noting for prejudice, “there must be some indication that the [party] has been hindered in the preparation of [the party's] case or has been prevented from taking some measure in support of [its] position.”].)
Given the extensive case law granting amendments, the Court is permitting Plaintiff to amend his Complaint. However, the Court may award “costs and continuances” as “may be just” in permitting such amendment, and elects to do so here because of the prejudice on Defendants and the temporal delay by Plaintiff which could have alleviated at least some of the prejudice.
Therefore, Plaintiff shall pay for the costs of all disclosure to occur due to this amendment, including the full cost of a further deposition(s), transcript reproductions, any further paper disclosure, and other related costs due to Plaintiff's delayed amendment. (See CPLR R. 3025[b] ; [c].)
Additionally, Defendants' counsel may submit an affidavit of counsel fees and receive reasonable compensation for the extra time expended on the matter due to the late amendment, which includes counsel fees for further deposition(s), drafting/responding disclosure demands or supplemental bill of particulars, and other related costs endured due to the amendment only. This remedy is well-supported in the case law. (See Whiteman Osterman & Hanna, LLP v. Albany–Troy Neurosurgical Assocs., P.C., 50 A.D.2d 1305, 1305 [3d Dept 2008] [“Granting a party permission to amend a pleading may be subject to certain conditions, including costs and reasonable counsel fees.”]; accord Sheppard v. Charles A. Smith Well Drilling & Water Systems, 102 A.D.2d 919 [3d Dept 1984] [requiring movant to pay reasonable costs and counsel fees due to the delayed amendment]; Mirabella v. Banco Indust. de la Republica Argentina, 34 A.D.2d 630, 631 [1st Dept 1970] [awarding “costs and reasonable counsel fees in connection with the litigation of issues arising under the added [amendments] brought into the action at this late date.”].)
Defendants' counsel shall not be entitled to any costs he would have incurred notwithstanding the amendment, which includes trial preparation time, motions in limine, and trial time. Said differently, Defendants' counsel is only permitted to submit an affidavit of counsel fees for the extra work caused by Plaintiff's amendment, which would include reopening disclosure.
Such affidavit of counsel fees should be submitted after trial, regardless of the outcome of the trial, and must be detailed with the date, time spent, amount earned, and a description of the service(s) rendered. The retainer agreement(s) between Defendants' and their counsel must be an exhibit to such affidavit.
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However, the Court notes that Plaintiff's amendment to add a cause of action for counsel fees is without merit and denied. First, Plaintiff moves to amend narrowly under CPLR R. 3025(c), which is to conform the evidence. There has been no evidence submitted that Plaintiff is entitled to counsel fees for the Court to conform it to. Second, even assuming that Plaintiff moved under CPLR R. 3025(b), it has been consistently held courts may review the merits of such amendment in deciding the application. (See Ancrum v. St. Barnabas Hosp., 301 A.D.2d 474, 475 [1st Dept 2003] (“We have consistently held ... that in an effort to conserve judicial resources, an examination of the proposed amendment is warranted and leave to amend will be denied when the proposed pleading is palpably insufficient as a matter of law”]; see also Blueberry Investors Co. v. Ilana Realty Inc., 184 A.D.2d 906, 907 [3d Dept 1992] [denying defendants' request to amend answer to assert three affirmative defenses after examining the proposed affirmative defenses and finding they were insufficient to defeat plaintiff's action]; Heller v. Louis Provenzano, Inc., 303 A.D.2d 20, 25 [1st Dept 2003] [“While it is true that motions for leave to amend pleadings are to be liberally granted in the absence of prejudice or surprises ... it is equally true that the court should examine the sufficiency of the merits of the proposed amendment when considering such motions.”].)
Since “attorneys' fees and disbursements are incidents of litigation and the prevailing party may not collect them from the loser unless an award is authorized by agreement between the parties or by statute or court rule[,]” and Plaintiff has not provided either an agreement or cited to a statute or court rule permitting such, Plaintiff's proposed amendment must be denied. (Matter of A .G. Ship Maintenance Corp. v. Lezak, 69 N.Y.2d 1, 5 [1986] ; see Halstead v. Fournia, 134 A.D.2d 1269, 1271 [3d Dept 2015].)
As such, Plaintiff is permitted to amend his Complaint to include the first and second causes of action, but not the third cause of action seeking counsel fees. Defendants are prejudiced, and permitted to re-open disclosure to prepare their defense, with costs and reasonable counsel fees awarded to them.
To the extent not specifically addressed above, the parties' remaining contentions have been examined and found to be lacking in merit or rendered academic.
Thereby, it is hereby
ORDERED that Plaintiff's motion to amend the Complaint to include the first and second cause of action is GRANTED, and the branch to amend the Complaint to add the third cause of action (counsel fees) is DENIED, and all other relief requested therein is denied in its entirety; and it is further
ORDERED that Plaintiff shall re-draft and file the supplemental summons and amended Complaint with the county clerk, then serve the filed copy on Defendants via first-class mail to each named Defendant and to Defendants counsel, within 21 days of the signing of this Decision and Order; and it is further
ORDERED that the trial scheduled for April 13, 2016 is ADJOURNED, without date; and it is further
ORDERED that the Note of Issue/Certificate of Readiness is STRICKEN, and the Court Clerk and County Clerk shall make the appropriate entry on their respective docket noting such; and it is further
ORDERED that the Court is scheduling a conference for Monday, April 4, 2016 at 11:30 AM, and counsel for all parties are to appear before the Court to set a scheduling order for new disclosure deadlines.
This constitutes the Decision and Order of the Court. Please note that a copy of this Decision and Order along with the original motion papers are being filed by Chambers with the County Clerk. The original Decision and Order is being returned to the prevailing party, to comply with CPLR R. 2220. Counsel is not relieved from the applicable provisions of this Rule with regard to filing, entry and Notice of Entry.
IT IS SO ORDERED.
Papers Considered:
Plaintiff's Order to Show Cause, signed on February 11, 2016; attorney affirmation of Michael J. Biscone, Esq., dated February 11, 2016; proposed amended verified complaint, dated February 8, 2016; and
Affirmation of Earl T. Redding, Esq. in response to Plaintiff's Order to Show Cause, with annexed exhibits, dated February 29, 2016.