Opinion
Index No. 713076/19
01-19-2022
Lorraine DAWODU, Plaintiff, v. FAMILY DOLLAR and Zeis Realty LLC, Defendants.
Attorneys for Plaintiff: DOMINICK W. LAVELLE, ESQ., Dominick W Lavelle Firm, 152 Forest Avenue, Locust Valley, NY 11560, 516-739-8111 Attorneys for Defendant Family Dollar: William Mckinney Brown, Sheeley, LLP, 100 Wall Street 19th Floor, New York, NY 10005, (212) 973-8085
Attorneys for Plaintiff: DOMINICK W. LAVELLE, ESQ., Dominick W Lavelle Firm, 152 Forest Avenue, Locust Valley, NY 11560, 516-739-8111
Attorneys for Defendant Family Dollar: William Mckinney Brown, Sheeley, LLP, 100 Wall Street 19th Floor, New York, NY 10005, (212) 973-8085
Robert I. Caloras, J.
The following papers numbered E24-E38 read on this motion by Plaintiff for an order granting Plaintiff leave to file an amended Summons and Verified Complaint correcting the date of the accident to reflect the date January 20, 2019.
PAPERS NUMBERED
Notice of Motion-Affirmations-Exhibits E24-E30
Affirmation in Opposition-Exhibits E35-E38
Upon the foregoing papers, it is ordered that Plaintiff's motion for leave to amend the Summons and Verified Complaint pursuant to CPLR 3025(b) to correct the date of the accident to reflect the date of January 20, 2019, is denied for the following reasons:
In the Complaint filed July 30, 2019, Plaintiff alleges that she was injured in a slip and fall accident due to the negligence of Defendants on February 8, 2019. In her verified bills of particulars, dated October 17, 2019 and November 14, 2019 respectively, Plaintiff reaffirmed that the accident occurred on February 8, 2019. At Plaintiff's January 12, 2021 deposition, Plaintiff once again stated the alleged accident occurred in February 2019.
On July 16, 2021, Plaintiff filed the instant motion seeking to amend the complaint to assert that the accident occurred on January 29, 2019. In support thereof, Plaintiff's attorney submitted an affirmation stating that the proposed changes to the Complaint merely corrects the date of the accident. In opposition, Defendants argue that Plaintiff's proposed amendment to the Complaint is devoid of merit because it is contradicted by Plaintiff's bills of particulars and deposition testimony. In support thereof, Defendants submitted copies of Plaintiff's bills of particulars and Plaintiff's deposition transcript.
A motion for leave to amend a pleading may be made "at any time," and "[l]eave shall be freely given upon such terms as may be just" ( CPLR 3025[b] ). The determination to permit or deny the amendment is committed to the sound and broad discretion of the trial court (see Kimso Apts., LLC v Gandhi , 24 NY3d 403, 411 ; Edenwald Contr. Co. v City of New York , 60 NY2d 957, 959 ), and its determination will not lightly be set aside (see Nanomedicon, LLC v Research Found. of State Univ. of NY , 129 AD3d 684, 685 ; Ingrami v Rovner , 45 AD3d 806, 808 ).
Delay alone is insufficient to bar an amendment to the pleading; "[i]t must be lateness coupled with significant prejudice to the other side" ( Edenwald Contr. Co. v City of New York , 60 NY2d at 959 [internal quotation marks omitted]; see Coleman v Worster , 140 AD3d 1002 ). While leave to amend a pleading is freely given absent prejudice or surprise resulting directly from the delay (see Eighth Ave. Garage Corp. v H.K.L. Realty Corp. , 60 AD3d 404, 405, 875 NYS2d 8 [2009] ), leave to amend "may not be granted upon mere request, without appropriate substantiation" ( Brennan v City of New York , 99 AD2d 445, 446, 470 NYS2d 621 [1984] ; JP Morgan Chase Bank, N.A. v Hall , 122 AD3d 576, 582 ). "Prejudice is more than the mere exposure of the [party] to greater liability’ " ( Kimso Apts., LLC v Gandhi , 24 NY3d at 411, quoting Loomis v Civetta Corinno Constr. Corp. , 54 NY2d 18, 23 ). "Rather, there must be some indication that the [party] has been hindered in the preparation of [the party's] case or has been prevented from taking some measure in support of [its] position’ " ( Kimso Apts., LLC v Gandhi , 24 NY3d at 411, quoting Loomis v Civetta Corinno Constr. Corp. , 54 NY2d at 23 ). The burden of establishing prejudice is on the party opposing the amendment (see Kimso Apts., LLC v Gandhi , 24 NY3d at 411 ).
Here, the Court finds that Plaintiff is not entitled to amend the complaint to change the date of the alleged accident, at this time, having already sworn to the original date on three separate occasions. Further, Plaintiff has not refuted Defendants opposition that the proposed amendment is devoid of merit. In Sanchez v Aldi Inc. , the Court granted Plaintiff's motion to amend the complaint to change the date of the alleged accident in part because Plaintiff's counsel noted that she learned of the actual date of the accident "as a result of further investigation and review of Plaintiff's medical records" (see Sanchez v Aldi Inc. , 2021 NY Misc. LEXIS 6717, *4). However, here, neither Plaintiff nor Plaintiff's counsel offered an explanation as to how they learned of the correct date or why they are just now moving to amend the complaint. In Segree v Park LLC , the Court also granted the amendment after finding the typographical error in the Complaint regarding the date of the accident did not result in any prejudice or surprise to the Defendants and was not palpably insufficient or patently devoid of merit. Significantly, Defendants in Segree were aware of the correct date of the accident as evidenced by correspondence between the attorneys and insurance carriers (see Segree v 762 Park LLC, 2020 NY Misc. LEXIS 1887, *4). However, here, there is nothing to suggest that Defendants were aware of the purported correct date prior to this motion and thus the Court cannot rule out possible prejudice and surprise. The Court additionally finds that Plaintiff's moving papers consisted solely of a three-page attorney's affirmation, without an affidavit of a person having personal knowledge and therefore lack any probative value and fail to provide an explanation ( Guzman v Mike's Pipe Yard , 35 AD3d 266, 266 ; Jaffa v Afrodiam, Ltd. , 93 AD3d 758, 759 ; see S.J. Capelin Assoc. v Globe Mfg. Corp. , 34 NY2d 338, 342, 313 ). As such, the Court is hard pressed and without any basis to find merit in the proposed amendment seeking to change the date of the accident, and the motion is denied.
The Court notes that the four assertions that the alleged accident occurred on February 8, 2019, coupled with a two-year lapse of time between the filing of the Complaint and this motion, and no explanation as to how it was discerned that February 8 was not the date of the accident, could cast suspicion of incredulity on any suggestion that the accident occurred on a different date. However, this Court need not make that decision in determining this motion. Rather, the litigation process including trial and cross-examination is the appropriate place to determine credibility and the merits of an assertion.