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Too Much, Too Late: 2nd Department Denies Plaintiff’s Leave to Amend and Grants Defendant SJ (NY)

May 3, 2017

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The discovery process presents a long and winding road to resolution, and in New York in particular, it often feels as if the plaintiff side is offered disproportionate leeway in terms of substance and deadlines.  Plaintiffs often supplement or amend their pleadings, with tacit Court approval, frustrating the defense or minimizing its impact.  However, in <em><a href="http://blog.wcmlaw.com/wp-content/uploads/2017/05/Tabak-v.-Shaw-Industries.pdf">Tabak v. Shaw Industries, Inc.</a></em>, The Appellate Division, Second Department reversed the trial court’s decision to grant plaintiff’s motion for leave to amend the bill of particulars and granted defendant’s cross motion for summary judgment dismissing the complaint.
In the 2010 complaint the plaintiff alleged that he was injured on August 16, 2007.  In a bill of particulars dated April 28, 2010, the plaintiff reiterated that the accident occurred on August 16, 2007.  At plaintiff’s deposition, he testified that the accident occurred on August 16, 2007.  The matter was stricken from the trial calendar on October 28, 2013 just prior to jury selection.  Approximately a year later plaintiff moved to restore the matter back to the trial calendar and for leave to amend the bill of particulars to change the date of the accident from August 16, 2007 to July 16, 2007.  Defendant opposed the motion and cross-moved for summary judgment dismissing the complaint, asserting that the plaintiff had conceded that the defendant did not make a delivery to the plaintiff’s location on August 16, 2007.  The Supreme Court granted the portion of plaintiff’s motion for leave to amend.
In its reversal, the Appellate Division noted although generally, leave to amend a pleading should be freely granted unless the proposed amendment is palpably insufficient or devoid of merit, here the defendant demonstrated that it would suffer significant prejudice as a result of the unexplained delay as plaintiff moved for leave more than four year after the action was commenced and almost a year after the matter was stricken from the trial calendar.  As a result, defendant’s cross motion for summary judgment dismissing the complaint was granted as the plaintiff admitted that the defendant did not have presence at the plaintiff’s location on August 16, 2007.
That the trial court initially granted the plaintiff’s leave to amend is an example of the leeway that lower courts will often provide plaintiffs.  The Second Department’s reversal is at least a reminder that there are some limits. Thanks to Justin Pomerantz for his contribution to this post.  Please email <a href="mailto:BGibbons@wcmlaw.com">Brian Gibbons</a> with any questions.

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