Catlyn & Derzee, Inc. v. Amedore Land Developers, LLC

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: Pritzker, J.
• Citation: Catlyn & Derzee, Inc. v. Amedore Land Developers, LLC, 169 A.D.3d 1319, 95 N.Y.S.3d 400 (N.Y. App. Div. 2019)
• Decision Date: 28 February 2019
• Docket Number: 526911
• Parties: CATLYN & DERZEE, INC., Appellant, v. AMEDORE LAND DEVELOPERS, LLC, et al., Respondents.

169 A.D.3d 1319

95 N.Y.S.3d 400

CATLYN & DERZEE, INC., Appellant,

v.AMEDORE LAND DEVELOPERS, LLC, et al., Respondents.

526911

Supreme Court, Appellate Division, Third Department, New York.

Calendar Date: January 10, 2019

Decided and Entered: February 28, 2019

Lemery Greisler, LLC, Albany (Paul A. Levine of counsel), for appellant.

O'Connell and Aronowitz, Albany (Paul A. Feigenbaum of counsel), for respondents.

Before: Garry, P.J., Egan Jr., Aarons, Rumsey and Pritzker, JJ.

MEMORANDUM AND ORDER

Pritzker, J.

The underlying facts of this case are fully set forth in two prior decisions of this Court ( 166 A.D.3d 1137, 1138, 87 N.Y.S.3d 661 [2018] ; 132 A.D.3d 1202, 1203, 19 N.Y.S.3d 348 [2015] ). Briefly, this matter involves a commercial dispute relating to the purchase and development of land in the Town of North Greenbush, Rensselaer County (hereinafter the property). In February 2008, defendant Amedore Land Developers, LLC formed defendant Van Allen Apartments, LLC for the purpose of entering into a contract to purchase the property from plaintiff. In May 2010, the parties executed an amendment to the contract which, among other things, allocated responsibilities for developing and paying for the property's infrastructure. The parties closed on the property the same day the amended contract was executed. In 2013, after several disputes arising from a change in zoning law, plaintiff commenced this action asserting numerous claims, only one of which remains intact – whether defendants were entitled to a governmental approval credit that it claimed at closing. After plaintiff subsequently amended the complaint, defendants answered and, among other things, asserted a counterclaim. However, plaintiff later alleged that defendants' counterclaim did not include a claim for money damages. After plaintiff refused to stipulate that money damages were included in the relief sought in the existing counterclaim, a conference was held in Supreme Court during which the court directed defendants to file a motion for leave to amend if plaintiff continued to refuse to stipulate to the amendment. Subsequently, defendants moved for leave to serve a second amended answer to assert a second counterclaim for money damages based upon breach of contract, which was opposed by plaintiff. Supreme Court granted the motion. Plaintiff appeals, and we affirm.

A motion for leave to amend a pleading should "be freely given" unless it can be shown that the amendment would prejudice the nonmoving party or is plainly lacking in merit ( CPLR 3025[b] ; see Bynum v. Camp Bisco, LLC, 155 A.D.3d 1503, 1504, 66 N.Y.S.3d 47 [2017] ), and a trial court's ruling should not be disturbed absent a clear abuse of discretion (see Backus v. Lyme Adirondack Timberlands II, LLC, 96 A.D.3d 1248, 1250, 947 N.Y.S.2d 639 [2012] ; Smith v. Haggerty, 16 A.D.3d 967, 968, 792 N.Y.S.2d 217 [2005] ). Further, "the movant need not establish the merits of the proposed amendment" ( NYAHSA Servs., Inc., Self–Ins. Trust v. People Care Inc., 156 A.D.3d 99, 101–102, 64 N.Y.S.3d 730 [2017] ; Belair Care Center, Inc. v. Cool Insuring Agency, Inc., 161 A.D.3d 1263, 1265, 77 N.Y.S.3d 171 [2018] ).

We are unpersuaded by plaintiff's contention that Supreme Court erred in granting defendants' motion to amend because defendants did not have privity of contract and therefore lack standing, rendering the proposed amendment palpably insufficient. In support of their motion for leave to serve a second amended answer, defendants submitted an affidavit by George Amedore Sr., a member of both Amedore Land Developers and Van Allen, wherein he confirmed that, in July 2015, Van Allen conveyed the property at issue to North Greenbush Apartment Partners LLC (hereinafter NGAP), a company which is not a party to this litigation. The affidavit also averred that Amedore Land Developers is nevertheless entitled to damages for the alleged breach because it "funded the cost of the infrastructure work for which defendants seek reimbursement." As correctly noted by Supreme Court, because NGAP's role is not apparent from the face of the second amended answer, nor is the extent and manner in which Amedore Land Developers bore the infrastructure expenses or whether it did so under any legal obligation, these matters require an evidentiary inquiry and are therefore more appropriate for a motion for summary judgment, or trial, rather than for a determination as to whether the amended pleading is palpably insufficient (see NYAHSA Servs., Inc., Self–Ins. Trust v. People Care Inc., 156 A.D.3d at 102, 64 N.Y.S.3d 730 ).

Likewise, Supreme Court properly found that the second amended pleading sets forth a colorable breach of contract claim, even if defendants failed to bill plaintiff monthly for infrastructure improvements as set forth in the amended contract. The language in the amended contract cited in the proposed counterclaim states explicitly that "the party doing the work shall bill the other party in monthly installments for its share of the cost ... and said bill shall be paid within 30 days unless objected to for reasonable cause." Defendants do not assert that billings have been sent; instead, they point to plaintiff's failure to actually perform...