Opinion
13556N, 108991/10
11-20-2014
A.N. FRIEDA DIAMONDS, INC., Plaintiff–Appellant, v. Yaron KAMINSKI, Defendant–Respondent.
Weg and Myers, P.C., New York (David A. McGill of counsel), for appellant. Havkins Rosenfeld Ritzert & Varriale, LLP, New York (Linda Fridegotto of counsel), for respondent.
Weg and Myers, P.C., New York (David A. McGill of counsel), for appellant.
Havkins Rosenfeld Ritzert & Varriale, LLP, New York (Linda Fridegotto of counsel), for respondent.
TOM, J.P., FRIEDMAN, ANDRIAS, FEINMAN, KAPNICK, JJ.
Opinion Order, Supreme Court, New York County (Joan M. Kenney, J.), entered February 3, 2014, which, to the extent appealed from, denied plaintiff's motion for leave to amend the complaint to add a cause of action for fraud, unanimously reversed, on the law and the facts, with costs, and the motion granted.
The court improvidently exercised its discretion in denying plaintiff's motion for leave to amend the complaint where there is no evidence that defendant would be prejudiced or surprised by the proposed amendment (see CPLR 3025 [b]; McCaskey, Davies & Assoc. v. New York City Health & Hosps. Corp., 59 N.Y.2d 755, 757, 463 N.Y.S.2d 434, 450 N.E.2d 240 [1983] ; JPMorgan Chase Bank, N.A. v. Low Cost Bearings N.Y. Inc., 107 A.D.3d 643, 644, 969 N.Y.S.2d 19 [1st Dept.2013] ). The record shows that defendant was aware of the fraud allegations since plaintiff's filing of the Adversary Proceeding Complaint in January 2011 during proceedings before the U.S. Bankruptcy Court, where discovery on the fraud issue had been completed; that the Bankruptcy Court directed that the fraud claim be adjudicated with the other claims pending before Supreme Court; and that the allegations in the present proposed amended complaint are the same as those raised before the Bankruptcy Court.
Plaintiff has alleged fraud with the requisite particularity (see CPLR 3016 [b]; Non–Linear Trading Co. v. Braddis Assoc., 243 A.D.2d 107, 116, 675 N.Y.S.2d 5 [1st Dept.1998] ), and has made a sufficient showing of merit (see Daniels v. Empire–Orr, Inc., 151 A.D.2d 370, 371, 542 N.Y.S.2d 614 [1st Dept.1989] ). The facts alleged show that defendant knowingly misrepresented that he had scheduled meetings with potential diamond buyers in Dallas, that he made such representation to induce plaintiff to give him $700,000 worth of diamonds to take with him, and that plaintiff justifiably relied on the representation to its detriment (see Lama Holding Co. v. Smith Barney, 88 N.Y.2d 413, 421, 646 N.Y.S.2d 76, 668 N.E.2d 1370 [1996] ). Plaintiff's proof permits a reasonable inference of fraudulent intent (see Pludeman v. Northern Leasing Sys., Inc., 10 N.Y.3d 486, 492–494, 860 N.Y.S.2d 422, 890 N.E.2d 184 [2008] ). Under the circumstances, plaintiff's inadvertent delay in seeking leave to amend is excusable (cf. Jablonski v. County of Erie, 286 A.D.2d 927, 730 N.Y.S.2d 626 [4th Dept.2001] ).