Opinion
17600-99.
Decided December 13, 2004.
R. Bertil Peterson, Esq., Babylon, NY, Attorney for Plaintiff.
Morris Duffy Alonso Fahey, LLP, Kenneth E. Pitcoff, Esq., New York, NY, Attorneys for defendant.
ORDERED, that the motion by plaintiff, pursuant to CPLR 3025(b), granting plaintiff leave to amend and supplement the complaint, and pursuant to CPLR 3124, compelling the defendant to respond to plaintiff's interrogatories, is denied.
The plaintiff commenced this action by the filing and service of a summons and complaint dated August 17, 1999. The complaint alleges that on May 18, 1998, May 23, 1998, and June 28, 1998, the Fred Shore Beach Club, which is located next to the plaintiff's property, held events which resulted in loud noise and the parking of various cars in front of the plaintiff's house. The plaintiff alleges that the defendant, Village of Babylon, was negligent in failing to enforce an ordinance which, plaintiff alleges, prohibits said Beach Club from holding such events on the subject property.
Discovery has proceeded in this case during the past five years and has been limited to the three specific dates identified by the plaintiff in the complaint. No discovery has been demanded or discussed for any events which might have taken place on any other dates from 1999 through the present. The plaintiff now, for the first time, seeks to amend the complaint to include allegations of the Village's negligence pertaining to events which may have occurred in 1999, 2000, 2001, 2002 and 2003. The parties have participated in numerous conferences with the Court during the pendency of this matter and the aforementioned allegations have never arisen during any of these conferences. It appears that after the deposition of one more official of the defendant Village, discovery will be complete and the matter ready for certification.
General Municipal Law section 50-i(1) (c) provides that an action against a village must ". . . be commenced within one year and ninety days after the happening of the event upon which the claim is based . . ." Accordingly, claims against the Village of Babylon for events occurring in 1999, 2000, 2001 and 2002 are untimely as the statute of limitations period for same has expired.
In the absence of any prior discussion or allegations with respect to claims for the time periods now identified by the plaintiff for the first time, the Court finds that the defendant would be greatly prejudiced if the complaint was amended to provide for such new causes of action. No previous demands or discovery has taken place with regard the newly alleged events. Nor has an explanation been offered as to why such claims are being raised for the first time five years after commencement of the initial claim and after numerous conferences with the Court.
Although leave to amend "shall be freely given upon such terms as may be just . . ." [CPLR 3025(b)], such amendment must be "in the absence of laches, undue prejudice and unfair advantage." Leutloff v. Leutloff, 47 Misc 2d 458, 262 N.Y.S.2d 736. When the facts on which a late motion for an amendment is based were known to the movant from the outset, as here, the courts are hesitant to allow amendment (See, e.g., L.B. Foster Co. v. Terry Contracting Inc., 25 AD2d 721, 268 N.Y.S.2d 618). The Court finds that amendment of the complaint at this time, with untimely causes of action that must have been known to the plaintiff at, or shortly after, the time of commencement of the action, or at least during the lengthy discovery process or at any of the numerous appearance before this court, would be unduly prejudicial to the defendant.
With regard to plaintiff's application to compel a response to plaintiff's interrogatories, the Court finds that since such interrogatories pertain to causes of action which are not contained in the original complaint, and have not been permitted to be asserted in an amended complaint, there is no basis upon which to grant such relief.
The foregoing constitutes the Order of this Court.