Opinion
5154 5155 Index 153640/13
12-07-2017
Daniel G. HICKEY, Jr., Plaintiff–Respondent, v. Steven E. KAUFMAN, P.C., et al., Defendants–Appellants.
Wilson Elser Moskowitz Edelman & Dicker LLP, New York (Patrick J. Lawless of counsel), for Steven E. Kaufman, P.C., Steven E. Kaufman and Andrew H. Kaufman, appellants. Furman Kornfeld & Brennan LLP, New York (A. Michael Furman of counsel), for Spiegel, Brown, Fichera & Cote, LLP and Donald D. Brown, Jr., appellants. Gold Benes, LLP, Bellmore (Melissa B. Levine of counsel), for respondent.
Wilson Elser Moskowitz Edelman & Dicker LLP, New York (Patrick J. Lawless of counsel), for Steven E. Kaufman, P.C., Steven E. Kaufman and Andrew H. Kaufman, appellants.
Furman Kornfeld & Brennan LLP, New York (A. Michael Furman of counsel), for Spiegel, Brown, Fichera & Cote, LLP and Donald D. Brown, Jr., appellants.
Gold Benes, LLP, Bellmore (Melissa B. Levine of counsel), for respondent.
Acosta, P.J., Mazzarelli, Kapnick, Webber, JJ.
Order, Supreme Court, New York County (Shlomo S. Hagler, J.), entered October 9, 2015, which granted plaintiff's motion for leave to amend the complaint and denied defendants' motions to dismiss the complaint as against them as moot, unanimously affirmed, without costs. Order, same court and Justice, entered on or about February 3, 2017, which denied defendants' motions to dismiss the amended complaint as against them, unanimously reversed, on the law, without costs, and the motions granted. The Clerk is directed to enter judgment dismissing the amended complaint.
Given the Legislature's 2005 amendment of CPLR 3211(e) (see Lucido v. Mancuso, 49 A.D.3d 220, 228–229, 851 N.Y.S.2d 238 [2d Dept. 2008], appeal withdrawn 12 N.Y.3d 813, 881 N.Y.S.2d 20, 908 N.E.2d 928 [2009] ), plaintiff was not required to support his motion to amend the complaint with an affidavit of merit ( MBIA Ins. Corp. v. Greystone & Co., Inc., 74 A.D.3d 499, 500, 901 N.Y.S.2d 522 [1st Dept. 2010] ). However, even viewed in the light of older precedent requiring an affidavit of merit on a motion to amend (see e.g. Bonanni v. Straight Arrow Publs., 133 A.D.2d 585, 588, 520 N.Y.S.2d 7 [1st Dept. 1987] ), the court providently exercised its discretion in finding that plaintiff's verification of the proposed amended complaint and his affidavit in opposition to defendants' motions to dismiss the original complaint, which affidavit was annexed as an exhibit to the proposed amended complaint, satisfied the requirement of an affidavit of merit. Plaintiff was not required to explain his approximately six-month delay in moving to amend the complaint (compare Oil Heat Inst. of Long Is. Ins. Trust v. RMTS Assoc., 4 A.D.3d 290, 772 N.Y.S.2d 313 [1st Dept. 2004] [2½ year delay]; Heller v. Louis Provenzano, Inc., 303 A.D.2d 20, 756 N.Y.S.2d 26 [1st Dept. 2003] [motion made more than six years after commencement of action, four years after filing of note of issue, more than four years after first trial, and more than 1½ years after decision on prior appeal] ). The fact that defendants expended time and expense in briefing their replies on their motions to dismiss the original complaint and preparing for oral argument is not the kind of prejudice required to defeat an amendment (see Jacobson v. Croman, 107 A.D.3d 644, 969 N.Y.S.2d 20 [1st Dept. 2013] ). Nevertheless, the amended complaint must be dismissed, because plaintiff's claim that, but for defendants' negligence, he would have recovered the full $3 million that he was owed during the bankruptcy filed by nonparty Majestic Capital, Ltd., consists of "gross speculations on future events" ( Sherwood Group v. Dornbush, Mensch, Mandelstam & Silverman, 191 A.D.2d 292, 294, 594 N.Y.S.2d 766 [1st Dept. 1993] ; see also Heritage Partners, LLC v. Stroock & Stroock & Lavan LLP, 133 A.D.3d 428, 19 N.Y.S.3d 511 [1st Dept. 2015], lv denied 27 N.Y.3d 904, 36 N.Y.S.3d 616, 56 N.E.3d 896 [2016] ; Turk v. Angel, 293 A.D.2d 284, 740 N.Y.S.2d 50 [1st Dept. 2002], lv denied 100 N.Y.2d 510, 766 N.Y.S.2d 164, 798 N.E.2d 348 [2003] ).