Opinion
March 5, 1996
Appeal from the Supreme Court, New York County (Carol Arber, J.).
This action was commenced in 1993 and pleaded ten causes of action, including breach of contract, intentional infliction of emotional distress and breach of the warranties of habitability and quiet enjoyment, predicated upon various actions taken by the cooperative corporation which owned the apartment in which plaintiff then lived. During the course of the litigation, plaintiff sold and moved from the apartment. Thereafter, in 1995, she sought to file an "amended" complaint which contained additional factual allegations concerning actions taken by the corporation regarding the sale. While most of these factual allegations merely supplemented the causes of action already pleaded, plaintiff also added an eleventh cause of action seeking to recover $8,660.50 in attorney and architect fees which she was required by the corporation to pay at the closing of her apartment and which she contends were not in an amount authorized by the Board of Directors in accordance with her proprietary lease. While plaintiff, inexplicably and erroneously, characterizes this cause of action as one for intentional infliction of emotional distress, such allegations, in fact, state a recognizable cause of action for breach of contract.
The court denied the motion to amend, primarily on the ground that the new allegations were not substantive and that in any event, the motion to amend was unnecessary since evidence regarding the newly alleged factual matters could be presented at trial, at which time the pleadings could be conformed to the proof.
In light of the lack of prejudice to defendant, it was an abuse of the court's discretion to decline to allow plaintiff to add these supplemental allegations and the additional cause of action to her pleading (CPLR 3025). Irrespective of the court's views as to the efficacy of proceeding in that fashion, plaintiff was entitled to proceed by way of amendment of the complaint.
Concur — Ellerin, J.P., Kupferman, Ross and Williams, JJ.