Schelchere v. Halls

• Decision Date: 27 August 2014
• Citation: Schelchere v. Halls, 2014 NY Slip Op 5970, 120 A.D.3d 788, 991 N.Y.S.2d 345 (N.Y. App. Div. 2014)
• Parties: Peter Jason SCHELCHERE, et al., appellants, v. Francis R. HALLS, respondent.
• Court: New York Supreme Court — Appellate Division

120 A.D.3d 788

991 N.Y.S.2d 345

2014 N.Y. Slip Op. 05970

Peter Jason SCHELCHERE, et al., appellants,

v.Francis R. HALLS, respondent.

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

Aug. 27, 2014.

Jan Meyer & Associates, P.C., New York, N.Y. (Solomon Rubin of counsel), for appellants.

Gannon, Rosenfarb, Balletti & Drossman, New York, N.Y. (Lisa L. Gokhulsingh of counsel), for respondent.

In an action to recover damages for personal injuries, the plaintiffs appeal from an order of the Supreme Court, Kings County (Bayne, J.), dated November 20, 2013, which denied their motion for leave to amend the complaint to assert additional causes of action alleging negligent infliction of emotional distress and breach of contract.

ORDERED that the order is affirmed, with costs.

Leave to amend pleadings should be freely given, provided that the proposed amendment does not prejudice or surprise the opposing party and is not palpably insufficient or patently devoid of merit ( see 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; Countrywide Home Loans, Inc. v. Gibson, 111 A.D.3d 875, 876, 976 N.Y.S.2d 142; Kruger v. EMFT, LLC, 87 A.D.3d 717, 718, 930 N.Y.S.2d 11). A motion to amend is addressed to the sound discretion of the court, and its determination will not lightly be set aside ( see Edenwald Contr. Co. v. City of New York, 60 N.Y.2d at 959, 471 N.Y.S.2d 55, 459 N.E.2d 164; Pappas & Marshall v. Ross Logistics, 222 A.D.2d 424, 634 N.Y.S.2d 717; Caruso v. Anpro, Ltd., 215 A.D.2d 713, 627 N.Y.S.2d 72).

Here, given the plaintiffs' extensive and unexplained delay in seeking to amend their complaint based on facts that were known to them since the onset of the litigation ( see Heller v. Louis Provenzano, Inc., 303 A.D.2d 20, 24, 756 N.Y.S.2d 26; Whalen v. 50 Sutton Place S. Owners, 276 A.D.2d 356, 357, 714 N.Y.S.2d 269; Caruso v. Anpro, Ltd., 215 A.D.2d 713, 714, 627 N.Y.S.2d 72), the prejudice to the defendant that would result from the amendment, and the plaintiffs' improper submission of a portion of their request for leave to amend and supporting evidence for the first time in their reply papers on the motion ( see Bjorke v. Rubenstein, 38 A.D.3d 580, 581, 833 N.Y.S.2d 115; Drake v. Drake, 296 A.D.2d 566, 745 N.Y.S.2d 712; Wright v. Cetek Technologies., 289 A.D.2d 569, 570, 735 N.Y.S.2d 804), the Supreme Court providently exercised its discretion in denying the plaintiffs' motion for...