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

• Decision Date: 28 February 2019
• Docket Number: 526911
• Parties: CATLYN & DERZEE, INC., Appellant, v. AMEDORE LAND DEVELOPERS, LLC, et al., Respondents.
• Court: New York Supreme Court — Appellate Division

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.

169 A.D.3d 1319

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

95 N.Y.S.3d 401

the Town of North Greenbush, Rensselaer County (hereinafter the property). In February 2008, defendant Amedore Land Developers, LLC formed defendant Van Allen Apartments,

169 A.D.3d 1320

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.,...