Putrelo Constr. Co. v. Town of Marcy

• Decision Date: 18 March 2016
• Citation: 27 N.Y.S.3d 760,137 A.D.3d 1591
• Parties: PUTRELO CONSTRUCTION COMPANY, Plaintiff–Appellant, v. TOWN OF MARCY, Defendant–Respondent. Town of Marcy, Third–Party Plaintiff, v. Bonacci Architects, PLLC, Successor In Interest To Fuligni–Fragola Architects, PLLC, Third–Party Defendant–Respondent.
• Court: New York Supreme Court — Appellate Division

137 A.D.3d 1591

27 N.Y.S.3d 760

PUTRELO CONSTRUCTION COMPANY, Plaintiff–Appellant,

v.TOWN OF MARCY, Defendant–Respondent.

Town of Marcy, Third–Party Plaintiff,

v.Bonacci Architects, PLLC, Successor In Interest To Fuligni–Fragola Architects, PLLC, Third–Party Defendant–Respondent.

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

March 18, 2016.

Sheats & Bailey, PLLC, Brewerton (Diana Plue of Counsel), for Plaintiff–Appellant.

Felt Evans, LLP, Clinton (Anthony G. Hallak of Counsel), for Defendant–Respondent.

Sugarman Law Firm, LLP, Syracuse (Jenna W. Klucsik of Counsel), for Third–Party Defendant–Respondent.

PRESENT: WHALEN, P.J., CENTRA, LINDLEY, TROUTMAN, AND SCUDDER, JJ.

MEMORANDUM:

Plaintiff commenced this action seeking damages for breach of contract in connection with its construction of a new town hall for defendant-third-party plaintiff (hereafter, defendant). Defendant commenced a third-party action against third-party defendant, the successor in interest to the architect who contracted with defendant. On a prior appeal, we affirmed an order granting the motion of third-party defendant for partial summary judgment dismissing the second cause of action, which sought delay damages (Putrelo Constr. Co. v. Town of Marcy, 105 A.D.3d 1406, 964 N.Y.S.2d 812

). Plaintiff now appeals from an order denying its motion for leave to amend the ad damnum clause, granting defendant's cross motion to limit the proof of damages at trial, and granting third-party defendant's cross motion for summary judgment dismissing the first cause of action in part.

We agree with plaintiff that Supreme Court abused its discretion in denying its motion to amend the ad damnum clause from $77,585.50 to $111,331.13, and we therefore modify the order by granting the motion. It is axiomatic that " ‘[l]eave 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’ " (Holst v. Liberatore, 105 A.D.3d 1374, 1374, 964 N.Y.S.2d 333

; see CPLR 3025[b] ; Meyer v. University Neurology, 133 A.D.3d 1307, 1309, 20 N.Y.S.3d 794 ; McGrath v. Town of Irondequoit, 120 A.D.3d 968, 969, 990 N.Y.S.2d 758 ). Plaintiff failed to include an amended pleading with its motion, as required by CPLR 3025(b). Under the circumstances of this case, however, we conclude that the error was merely a technical defect that the court should have disregarded (see generally CPLR 2001 ), inasmuch as "the limited proposed amendment [was] clearly described in the moving papers" and did not prejudice defendant or third-party defendant (Medina v. City of New York, 134 A.D.3d 433, 433, 19 N.Y.S.3d 732 ; cf. Barone v. Concert Serv. Specialists, Inc., 127 A.D.3d 1119, 1120, 8 N.Y.S.3d 358 ).

We further conclude that defendant and third-party defendant failed to show that they would be prejudiced by the amendment. "[I]n the absence of prejudice ..., a motion to amend the ad damnum clause, whether made before or after the trial, should generally be granted" (Loomis v. Civetta Corinno Constr. Corp., 54 N.Y.2d 18, 23, 444 N.Y.S.2d 571, 429 N.E.2d 90

, rearg. denied 55 N.Y.2d 801, 447 N.Y.S.2d 436, 432 N.E.2d 138 ). We reject the contention of defendant and third-party defendant that the amendment was "palpably insufficient or patently devoid of merit" (Corwise v. Lefrak Org., 93 A.D.3d 754, 754, 940 N.Y.S.2d 659 ). Defendant and third-party defendant rely upon documents submitted by them in opposition to the motion, but " ‘[a] court should not examine the merits or legal sufficiency of the proposed amendment unless the proposed pleading is clearly and patently insufficient on its face’ " (Holst, 105 A.D.3d at 1374–1375, 964 N.Y.S.2d 333 ; see Favia v. Harley–Davidson Motor Co., Inc., 119 A.D.3d 836, 836, 990 N.Y.S.2d 540 ). Finally, while the delay in moving to amend was extensive and plaintiff provided no excuse for it, " ‘[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 ), which, as we previously concluded, defendant and third-party defendant did not show.

With respect to defendant's cross motion, defendant contends that it merely sought an evidentiary ruling and thus that no appeal lies from the order granting the cross motion. We reject that contention, and instead conclude that defendant's cross motion was the functional equivalent of a motion for partial summary judgment (see Dischiavi v. Calli, 125 A.D.3d 1435, 1436, 3 N.Y.S.3d 491

; Charter Sch. for Applied Tech. v. Board of Educ. for City Sch. Dist. of City of Buffalo, 105 A.D.3d 1460, 1464, 964 N.Y.S.2d 366 ). In addition, with respect to the cross motions by defendant and third-party defendant, "[a]lthough successive summary judgment motions generally are disfavored absent newly discovered evidence or other sufficient cause ..., neither Supreme Court nor this Court is precluded from addressing the merits of such a motion" (Giardina v. Lippes, 77 A.D.3d 1290, 1291, 909 N.Y.S.2d 602

, lv. denied 16 N.Y.3d 702, 2011 WL 135242 ; see Sexstone v. Amato, 8 A.D.3d 1116, 1116–1117, 778 N.Y.S.2d 635, lv. denied 3 N.Y.3d 609, 786 N.Y.S.2d 812, 820 N.E.2d 291 ). The court appropriately exercised its discretion in considering the merits of the cross motions (see...