Eshaghian v. Eshaghian, 8584N

• Decision Date: 05 March 2019
• Docket Number: Index 654481/15,8584N
• Citation: 170 A.D.3d 416,93 N.Y.S.3d 564 (Mem)
• Parties: David ESHAGHIAN, Plaintiff–Appellant, v. Marokh ESHAGHIAN, et al., Defendants–Respondents, First American Title Insurance Company, Nominal Defendant.
• Court: New York Supreme Court — Appellate Division

170 A.D.3d 416

93 N.Y.S.3d 564 (Mem)

David ESHAGHIAN, Plaintiff–Appellant,

v.Marokh ESHAGHIAN, et al., Defendants–Respondents,First American Title Insurance Company, Nominal Defendant.

8584N

Index 654481/15

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

ENTERED: MARCH 5, 2019

Davidoff Hutcher & Citron LLP, New York (Malcolm S. Taub of counsel), for appellant.

Vishnick McGovern Milizio LLP, Lake Success (Jordan M. Freundlich of counsel), for respondents.

Acosta, P.J., Richter, Manzanet–Daniels, Tom, Moulton, JJ.

Plaintiff's proposed new claim arises from the same facts (indeed appears in the same agreement) that formed the basis of the prior claims and counterclaims. Thus, while defendants emphasize plaintiff's long delay in seeking to amend, they have not shown that they are surprised or prejudiced by the amendment (see Anoun v. City of New York, 85 A.D.3d 694, 926 N.Y.S.2d 98 [1st Dept. 2011] ).

On its face, the proposed amendment is not "palpably devoid of merit" (see Cruz v. Brown, 129 A.D.3d 455, 456, 11 N.Y.S.3d 33 [1st Dept. 2015] ). It flows logically from the prior rulings in this case as to the validity of the Letter Agreement and the invalidity of the so-called "Side Agreement."

The prior summary judgment ruling in this action does not constitute a bar to amendment of the complaint on the ground of res judicata, which is applicable only to a judgment in a prior action (see Hudson–Spring Partnership, L.P. v. P+M Design Consultants, Inc., 112 A.D.3d 419, 976 N.Y.S.2d 57 [1st Dept. 2013] ). There is no violation of the law of the case doctrine, because the proposed amendment is consistent with, rather than contrary to, the prior rulings in this action.