Bast Hatfield, Inc. v. Schalmont Central School District
| Decision Date | 22 February 2007 |
| Docket Number | 500674. |
| Citation | 2007 NY Slip Op 01437,830 N.Y.S.2d 799,37 A.D.3d 987 |
| Parties | BAST HATFIELD, INC., Respondent, v. SCHALMONT CENTRAL SCHOOL DISTRICT, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Rose, J Plaintiff commenced this action seeking to recover payment for work it performed under a construction contract with defendant. When plaintiff moved for leave to serve a second amended complaint, defendant cross-moved for leave to serve an amended answer, adding two counterclaims. Supreme Court granted leave as to only one counterclaim because it found that the other, which sought indemnification for delay damages claimed by an electrical subcontractor, lacked merit. Defendant's motion for reargument or renewal was also denied. Defendant appeals from both orders.
As a general rule, leave to amend a pleading "rests within the trial court's discretion and should be freely granted in the absence of prejudice or surprise resulting from the delay except in situations where the proposed amendment is wholly devoid of merit" (Berger v Water Commrs. of Town of Waterford, 296 AD2d 649, 649 [2002]; see CPLR 3025 [b]). In assessing the merit of a proposed amendment, however, the proponent is required only to make an evidentiary showing sufficient to support the proposed claim (see McFarland v Michel, 2 AD3d 1297, 1300 [2003]). A summary judgment standard is not to be applied (see Acker v Garson, 306 AD2d 609, 610 [2003]; Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C3025:11).
Here, Supreme Court found no prejudice to plaintiff. However, the court then treated the motion as one for summary judgment and made a factual finding that the claim lacked merit because plaintiff alleged that defendant had not given notice of its claim within the 21-day period prescribed in the parties' construction contract. This was error, inasmuch as defendant was not required to plead or prove the performance of such a condition precedent (see CPLR 3015 [a]; CNY Mech. Assoc. v Fidelity & Guar. Ins. Co., 212 AD2d 989, 990 [1995]; compare Kingsley Arms,...
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