Opinion
Index No. 113984/2011
03-06-2015
DAVID GLYNOS, Plaintiff v. ANDREAS DORIZAS, Defendant
DECISION AND ORDER
:
Defendant moves to amend his answer to add a tenth and an eleventh affirmative defense to plaintiff's remaining claim that defendant breached the parties' written contract dated April 13, 2005, providing that, upon defendant's sale of specified real property for at least $3,000,000, defendant was to pay plaintiff a $150,000 bonus for his past management services. Glynos v. Dorizas, 106 A.D.3d 480, 480 (1st Dep't 2013). C.P.L.R. § 3025(b) permits amendments to an answer adding affirmative defenses as long as the proposed affirmative defenses, as alleged, are meritorious. Mezzacappa Bros., Inc. v. City of New York, 29 A.D.3d 494, 494 (1st Dep't 2006); Tishman Constr. Corp. of N.Y. v. City of New York, 280 A.D.2d 374, 377 (1st Dep't 2001); Lanpont v. Savvas Cab Corp., 244 A.D.2d 208, 209-10 (1st Dep't 1997); Norwood v. City of New York, 203 A.D.2d 147, 148 (1st Dep't 1994). See Sterling Natl. Bank v. American Elite Props. Inc., 91 A.D.3d 581, 581 (1st Dep't 2012). Defendant bears the burden to demonstrate the merits of the proposed defenses through admissible evidence. See Anoun v. City of New York, 85 A.D.3d 694, 695 (1st Dept 2011); Guzman v. Mike's Pipe Yard, 35 A.D.3d 266, 266 (1st Dep't 2006); Lanpont v. Savvas Cab Corp., 244 A.D.2d at 210. While defendant need not establish at this stage that the proposed defenses will succeed, he still must show their viability, by alleging their elements in a proposed verified amended answer or supporting them with other admissible evidence. Anoun v. City of New York, 85 A.D.3d at 695; CDR Créances S.A.S. v. Cohen, 77 A.D.3d 489, 490 (1st Dep't 2010); Guzman v. Mike's Pipe Yard, 35 A.D.3d at 266.
I. DEFENDANT'S PROPOSED TENTH AFFIRMATIVE DEFENSE
Defendant claims that any past management services by plaintiff were not for defendant's benefit, but were for the benefit of Mediterranean Properties, LLC, the manager of the real property. Defendant's proposed tenth affirmative defense claims that defendant is not personally liable for plaintiff's services for the benefit of the LLC or the real property the LLC managed. To support this proposed affirmative defense, defendant points out that, although he was a 50% owner of Mediterranean Properties, he would not be liable for any breach of contract, quantum meruit, or unjust enrichment claim against the limited liability company (LLC). N.Y. Lim. Liab. Co. Law § 609(e).
Plaintiff, however, does not make any claim against the LLC, allege any contract with the LLC, or make any quantum meruit or unjust enrichment claim even against defendant. Nor does defendant show any contract between plaintiff and the LLC. The contract that forms the basis for this action is between plaintiff and defendant personally. Therefore defendant's proposed tenth affirmative defense, that defendant is not personally liable for plaintiff's services for the benefit of the LLC or the real property the LLC managed, is inapplicable.
II. DEFENDANT'S PROPOSED ELEVENTH AFFIRMATIVE DEFENSE
Insofar as defendant claims his contract with plaintiff is unenforceable because plaintiff gave no consideration to defendant, as opposed to his LLC, this theory is articulated fully and more directly in his proposed eleventh affirmative defense. Because this defense depends on defendant's allegations outside the scope of the complaint and any supporting admissible evidence offered by plaintiff, the defense was "unavailing" in support of defendant's prior motion to dismiss the complaint, Glynos v. Dorizas, 106 A.D.3d at 480; see Lawrence v. Graubard Miller, 11 N.Y.3d 588, 595 (2008); Nonnon v. City of New York, 9 N.Y.3d 825, 827 (2007); Tsimerman v. Janoff, 40 A.D.3d 242, 242 (1st Dep't 2007); Weil, Gotshal & Manges, LLP v. Fashion Boutique of Short Hills, Inc., 10 A.D.3d 267, 270-71 (1st Dep't 2004), but a lack of consideration given by plaintiff to defendant is a viable defense to the enforceability of the parties' contract.
Finally, while defendant points to reasons why he did not include a defense of lack of consideration in his original answer and developments in the litigation that have prompted his proposed amendment, C.P.L.R. § 3025(b) does not require such an explanation. Even if a delay in seeking amendment is unexplained, to defeat the amendments, the delay must have caused plaintiff surprise or other prejudice. Anoun v. City of New York, 85 A.D.3d at 694; Antwerpse Diamantbank N.V. v. Nissel, 27 A.D.3d 207, 208 (1st Dep't 2006); Tishman Constr. Corp. of N.Y. v. City of New York, 280 A.D.2d at 377; Cseh v. New York City Tr. Auth., 240 A.D.2d 270, 271 (1st Dep't 1997). To show prejudice from the delay, plaintiff must demonstrate that the delay has hindered the preparation of support for his claims. Anoun v. City of New York, 85 A.D.3d at 694; Antwerpse Diamantbank N.V. v. Nissel, 27 A.D.3d at 208; Cseh v. New York City Tr. Auth., 240 A.D.2d at 271; Norwood v. City of New York, 203 A.D.2d at 149.
Plaintiff protests that he will suffer prejudice from the addition of this defense, but the only prejudice, if any, is that unfortunately, as a result of defendant's motion to dismiss and appeal of the partial denial of his motion, this action has not progressed beyond the initial stages of disclosure. Plaintiff does not identify any prejudice from defendant's delay in including the proposed eleventh affirmative defense in his answer, nor does the court discern any such prejudice. Tishman Constr. Corp. of N.Y. v. City of New York, 280 A.D.2d at 378. Plaintiff has not shown that the addition of this defense will hinder him from preparing support for his claim and the relief sought or taking any measure toward his objective in this action.
III. CONCLUSION
Since defendant's defense of lack of consideration has merit, the court grants his motion to amend his answer to the extent of permitting inclusion of his proposed eleventh affirmative defense in an amended answer. C.P.L.R. § 3025(b); Anoun v. City of New York, 85 A.D.3d at 695; Mezzacappa Bros., Inc. v. City of New York, 29 A.D.3d at 494; Tishman Constr. Corp. of N.Y. v. City of New York, 280 A.D.2d at 378; Lanpont v. Savvas Cab Corp., 244 A.D.2d at 210. Since defendant's defense that defendant is not personally liable for plaintiff's services for the benefit of Mediterranean Properties, LLC, or the real property the LLC managed lacks merit except insofar as the defense duplicates the lack of consideration defense, the court denies defendant's motion to amend its answer to include his proposed 10th affirmative defense. C.P.L.R. § 3025(b); Sterling Natl. Bank v. American Elite Props. Inc., 91 A.D.3d at 581. To amend his answer to include an affirmative defense of lack of consideration, defendant shall serve and file an amended answer adding only this defense within 10 days after service of this order with notice of entry. DATED: March 6, 2015
/s/_________
LUCY BILLINGS, J.S.C.