Bishop v. Maurer

• Decision Date: 12 April 2011
• Citation: 921 N.Y.S.2d 224,83 A.D.3d 483,2011 N.Y. Slip Op. 02932
• Parties: Lisa BISHOP, et al., Plaintiffs–Appellants–Respondents,v.Rona MAURER, etc., Defendant–Respondent–Appellant.
• Court: New York Supreme Court — Appellate Division

83 A.D.3d 483

921 N.Y.S.2d 224

2011 N.Y. Slip Op. 02932

Lisa BISHOP, et al., Plaintiffs–Appellants–Respondents,

v.Rona MAURER, etc., Defendant–Respondent–Appellant.

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

April 12, 2011.

Lawrence H. Silverman, Commack, for appellants-respondents.Richard L. Herzfeld, P.C., New York (Richard L. Herzfeld of counsel), for respondent-appellant.MAZZARELLI, J.P., ACOSTA, DeGRASSE, RICHTER, MANZANET–DANIELS, JJ.

Order, Surrogate's Court, New York County (Troy K. Webber, S.), entered November 23, 2009, which, to the extent appealed from as limited by the briefs, granted plaintiffs' motion for leave to amend their complaint insofar as it sought to include an allegation of forgery in their existing claim for undue influence, and denied the motion insofar as it sought to add a cause of action for fraud, without prejudice to bringing such a motion before the Supreme Court, New York County, unanimously modified, on the law, to deny leave to add a cause of action for fraud, and otherwise affirmed, without costs.

Contrary to defendant's claim, decedent did not previously acknowledge that he signed the retainer agreement on which defendant allegedly forged his signature. On the contrary, he alleged that defendant retained the lawyers who prepared the documents that he sought to set aside (a trust agreement and an agreement relating to his Individual Retirement Account [IRA] and Employee Stock Ownership Plan [ESOP] ). The reference in decedent's brief on a prior appeal to a conflict waiver did not unambiguously mean the conflict waiver in the retainer agreement, as there was also a conflict waiver in the IRA/ESOP agreement.

The question of whether decedent signed the retainer letter was not at issue on the prior appeal (33 A.D.3d 497, 823 N.Y.S.2d 366 [2006], affd. 9 N.Y.3d 910, 844 N.Y.S.2d 165, 875 N.E.2d 883 [2007] ). Accordingly, law of the case does not apply here ( see generally People v. Evans, 94 N.Y.2d 499, 502, 706 N.Y.S.2d 678, 727 N.E.2d 1232 [2000] ). The Court of Appeals' reference to “the estate planning documents decedent signed” (9 N.Y.3d at 911, 844 N.Y.S.2d 165, 875 N.E.2d 883) must have meant the trust agreement and the IRA/ESOP agreement, since a retainer letter is not an estate planning document.

Defendant contends that plaintiffs' motion for leave to amend the complaint was untimely. However, “[m]ere lateness is not a barrier to the amendment. It must be lateness coupled with significant prejudice to the other side” ( Edenwald Contr. Co. v. City of New York, 60 N.Y.2d 957, 959, 471 N.Y.S.2d 55, 459 N.E.2d 164 [1983] [internal quotation marks and citation omitted] ). In opposition to plaintiffs' motion, defendant did not show how she would be prejudiced. We decline to consider arguments that she advanced for the first time in her motion for renewal and reargument, as we previously denied her request to enlarge the appellate record to include the papers from that motion ( see Bishop v. Maurer, 2010 N.Y. Slip Op. 87017[U], 2010 WL 4342156 [2010] ).

The fraud claim...