Lis v. Lancaster

• Decision Date: 15 June 2022
• Docket Number: 595376/2019,Index Nos. 650855/2019,Motion Seq. No. 007
• Citation: 2022 NY Slip Op 31899 (U)
• Parties: ANDREW LIS, Plaintiff, v. JASON LANCASTER, DEBBIE LANCASTER, CECIL SIMMONS, DEE CHASE-UNNO, GULF PREMIER LOGISTICS LLC, OVERLAND DISTRIBUTION CO., INC. OVERLAND EXPRESS CO., INC. JAL ENVIRONMENTAL SERVICES PROGRAMS, BANK OF AMERICA NA, JP MORGAN CHASE BANK NA, Defendant. JASON LANCASTER, JAL ENVIRONMENTAL SERVICES PROGRAMS Plaintiff, v. JAL ENVIRONMENTAL SERVICES PROGRAMS LLC Defendant.
• Court: New York Supreme Court

2022 NY Slip Op 31899(U)

ANDREW LIS, Plaintiff,
v.
JASON LANCASTER, DEBBIE LANCASTER, CECIL SIMMONS, DEE CHASE-UNNO, GULF PREMIER LOGISTICS LLC, OVERLAND DISTRIBUTION CO., INC. OVERLAND EXPRESS CO., INC. JAL ENVIRONMENTAL SERVICES PROGRAMS, BANK OF AMERICA NA, JP MORGAN CHASE BANK NA, Defendant.

JASON LANCASTER, JAL ENVIRONMENTAL SERVICES PROGRAMS Plaintiff,
v.
JAL ENVIRONMENTAL SERVICES PROGRAMS LLC Defendant.

Index Nos. 650855/2019, 595376/2019, Motion Seq. No. 007

Supreme Court, New York County

June 15, 2022

Unpublished Opinion

MOTION DATE 12/09/2021

DECISION + ORDER ON MOTION

MELISSA CRANE, J.S.C.

The following e-filed documents, listed by NYSCEF document number (Motion 007) 381, 382, 383, 384, 385, 386, 387, 389, 390, 391, 392, 393, 394, 395, 397, 398, 399, 400, 401, 402, 403, 404 were read on this motion to/for AMEND CAPTION/PLEADINGS

In this action involving a business dispute between plaintiff Andrew Lis and defendant Jason Lancaster (Lancaster), as well as his companies, defendants Gulf Premier Logistics LLC (Gulf Premier) and defendant/counterclaimant/third-party plaintiff JAL Environmental Services Programs d/b/a JAL Environmental Services Programs, Inc. (JAL-TX) (collectively defendants), plaintiff moves for leave to amend the first amended complaint dated April 2,2019 (the FAC), and file the proposed second amended complaint (the SAC).

1

For the reasons set forth below, the court grants plaintiffs motion.

FACTUAL BACKGROUND

Familiarity with the underlying facts and procedural history of this matter is presumed. The following is a brief recitation of the facts relevant to this motion. The complaint (NYSCEF Doc No. 1) was filed on February 8, 2019 and, while the case was temporarily removed to the United States District Court, plaintiff's then-counsel, Marzec Law Firm, P.C., filed and served the FAC dated April 2, 2019 (NYSCEF Doc No. 196). This is and has been the operative complaint during all relevant times (affirmation of Ihsan Dogramaci, Esq., plaintiffs counsel [NYSCEF Doc No. 383], ¶ 4).

Upon remand, on May 6, 2019, defendants filed and served their answer, counterclaims and third-party complaint (NYSCEF Doc No. 92) in response to the FAC. On July 25, 2019, the law firm of Pavia & Harcourt LLP entered its appearance and substituted in as counsel for plaintiff and third-party defendant JAL Environmental Services Programs, LLC (JAL-NY) (NYSCEF Doc No. 210).

Since that time, the parties have completed all written discovery, document productions, three party and five non-party depositions, expert disclosures and three expert depositions (affirmation of Nicole Sullivan, Esq., defendants' counsel [NYSCEF Doc No. 390], ¶ 2). The note of issue deadline was originally December 29, 2021, and dispositive motions were to be submitted soon thereafter (see 11/17/21 stipulation and order [NYSCEF Doc No. 378]). The final scheduling order was filed on April 4, 2022 (NYSCEF Doc No. 446), and the note of issue was filed on April 20, 2022 (NYSCEF Doc No. 467).

2

However, on April 19, 2022, this court granted plaintiffs motion to vacate paragraph 4 of the final scheduling order that prohibited plaintiff from subpoenaing Liskow & Lewis, Lancaster's former attorneys, in Louisiana. This court found that:

"At issue is whether or not the parties were partners or merely employer/employee. As the law firm that drafted the relevant agreement between the parties for Mr. Lancaster Liskow & Lewis would have information material and necessary to this central issue. Defendant has repeatedly stated that he does not control Liskow & Lewis Accordingly, given this lack of control, there is no way for defendant to know that the documents he has produced from Liskow & Lewis are complete"

(4/19/21 decision [NYSCEF Doc No. 491), at 2).

Consequently, this court issued an order allowing plaintiff to seek discovery from Liskow & Lewis, but "limited to the issue of whether the parties were partners or employer/employee" (id. at 3).

On May 26, 2002, this court then issued an order vacating the note of issue, requiring plaintiff to file a new note of issue by December 31, 2022, and requiring the parties' motions for summary judgment to be filed within 60 days from the filing of the note of issue (see NYSCEF Doc No. 493).

The claims against defendants Cecil Simmons, Dee Chase-Unno, Debbie Lancaster, Overland Distribution Co., Inc. and Overland Express Co., Inc., Bank of America, and JP Morgan Chase Bank have been voluntarily dismissed (see NYSCEF Doc Nos. 185, 186, 312, 379).

DISCUSSION

Pursuant to CPLR 3025 (b), "[a] party may amend his or her pleading, or supplement it by setting forth additional or subsequent transactions or occurrences, at any time by leave of court or by stipulation of all parties." As a general proposition, leave to amend pleadings "should be freely granted" (RBP of 400 W42 St., Inc. v 400 W. 42^nd St. Realty Assoc., 27 A.D.3d 250, 250 [1^st Dept 2006]).

3

On a motion for leave to amend, plaintiff must establish "that the proffered amendment is not palpably insufficient or clearly devoid of merit" (MBIA Ins. Corp. v Greystone & Co., Inc., 74 A.D.3d 499, 500 [1^st Dept 2010]; see also Perotti v Becker, Glynn, Melamed & Muffly LLP, 82 A.D.3d 495, 498-499 [1^st Dept 2011]), and '"does not prejudice or surprise the opposing party'" (Clark v Clark, 93 A.D.3d 812, 816 [2d Dept 2012] [citation omitted]; see also Miller v Cohen, 93 A.D.3d 424,425 [1^st Dept 2012] [on a motion to amend a complaint, the plaintiff "need not establish the merit of the proposed new allegations, but must 'simply show that the proffered amendment is not palpably insufficient or clearly devoid of merit'"] [citation omitted]). Indeed, "[t]he party opposing the motion to amend must...