Holst v. Liberatore

• Decision Date: 26 April 2013
• Citation: Holst v. Liberatore, 2013 NY Slip Op 2884, 105 A.D.3d 1374, 964 N.Y.S.2d 333 (N.Y. App. Div. 2013)
• Parties: William M. HOLST, Larry J. Pierce, Lillian Braunbach, David P. Martin, Linda Zgoda–Martin, Mary E. Pankow, Steven Smith, Robin Marie Smith, Robert J. Martin, Carrie A. Martin, David S. Winnert, Michele Mueller, Kenneth J. Ulicki and Marilyn M. Ulicki, Plaintiffs–Appellants, v. Victor LIBERATORE and Sally Liberatore, Defendants–Respondents.
• Court: New York Supreme Court — Appellate Division

105 A.D.3d 1374

964 N.Y.S.2d 333

2013 N.Y. Slip Op. 02884

William M. HOLST, Larry J. Pierce, Lillian Braunbach, David P. Martin, Linda Zgoda–Martin, Mary E. Pankow, Steven Smith, Robin Marie Smith, Robert J. Martin, Carrie A. Martin, David S. Winnert, Michele Mueller, Kenneth J. Ulicki and Marilyn M. Ulicki, Plaintiffs–Appellants,

v.Victor LIBERATORE and Sally Liberatore, Defendants–Respondents.

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

April 26, 2013.

Goodell & Rankin, Jamestown (Kimberly Thrun of Counsel), for Plaintiffs–Appellants.

Law Office of Ralph C. Lorigo, West Seneca (Ralph C. Lorigo of Counsel), for Defendants–Respondents.

PRESENT: CENTRA, J.P., FAHEY, CARNI, LINDLEY, AND WHALEN, JJ.

MEMORANDUM:

Plaintiffs appeal from an order that denied their motion seeking leave to amend their complaint. Defendants own property abutting a lake, and plaintiffs are nearby property owners. In their complaint, plaintiffs allege that they have a right-of-way over defendants' property providing them with access to the lake. We agree with plaintiffs that Supreme Court erred in denying their motion seeking leave to amend the complaint to add an adverse possession cause of action.

“Leave to amend a pleading should be freely granted in the absence of prejudice to the nonmoving party where the amendment is not patently lacking in merit” ( McFarland v. Michel, 2 A.D.3d 1297, 1300, 770 N.Y.S.2d 544 [internal quotation marks omitted]; seeCPLR 3025[b]; Anderson v. Nottingham Vil. Homeowner's Assn., Inc., 37 A.D.3d 1195, 1198, 830 N.Y.S.2d 882). Although “[t]he decision to allow or disallow the amendment is committed to the court's discretion” ( 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), we conclude that the court here abused its discretion in denying plaintiffs' motion. Defendants have failed to demonstrate the existence of any prejudice or surprise that would result from the amendment, or that the proposed amendment was palpably insufficient or patently devoid of merit. Indeed, as demonstrated by their answer, defendants interpreted plaintiffs' original complaint as setting forth a claim to the subject right-of-way by adverse possession.

Contrary to defendants' contention, “[a] court should not examine the merits or legal sufficiency of the proposed amendmentunless the proposed pleading is clearly and patently insufficient on its face” ( Landers v. CSX Transp., Inc., 70 A.D.3d 1326, 1327, 893 N.Y.S.2d 774 [internal quotation marks omitted]; see Matter of Clairol Dev., LLC v. Village of Spencerport, 100 A.D.3d 1546, 1546, 954 N.Y.S.2d 389;Lucido v. Mancuso, 49 A.D.3d 220, 229, 851 N.Y.S.2d 238). Moreover, the original complaint provided the necessary evidentiary support for the motion ( see McFarland, 2 A.D.3d at 1300, 770 N.Y.S.2d 544;see also Dever v. DeVito, 84 A.D.3d 1539, 1541, 922 N.Y.S.2d 646,lv. dismissed18 N.Y.3d 864, 938 N.Y.S.2d 846, 962 N.E.2d 269;Farrell v. K.J.D.E. Corp., 244 A.D.2d 905, 905, 665 N.Y.S.2d 201). Contrary to defendants' further contention, there was no extended delay in seeking leave to amend the complaint and, in any event, “ ‘[m]ere lateness is not a barrier to the amendment. It must be lateness coupled with significant prejudice to the other side, the very elements of the laches doctrine’ ” ( Edenwald Contr. Co., 60 N.Y.2d at 959, 471 N.Y.S.2d 55, 459 N.E.2d 164;see generally Boxhorn v. Alliance Imaging, Inc., 74 A.D.3d 1735, 1736, 901 N.Y.S.2d 891).

“Although it would have been better practice for plaintiff[s] to have included the proposed amended complaint with [their] ... motion to amend,” we conclude that plaintiffs' failure to submit a copy of the proposed amended complaint here is not fatal to their motion ( Walker v. Pepsico, Inc., 248 A.D.2d 1015, 1015, 669 N.Y.S.2d 1003;see Crystal Run Newco, LLC v. United Pet Supply, Inc., 70 A.D.3d 1418, 1420, 896 N.Y.S.2d 271). Plaintiffs brought the instant...