Opinion
Index No.: 111966/2009
10-09-2018
BIANCA RAZZANO, Plaintiff, v. WOODSTOCK OWNERS CORP. Defendant.
David L. Moss & Associates, New York (David L. Moss of counsel), for plaintiff. D'Amato & Lynch, LLP, New York (Liza A. Chafiian of counsel), for defendant.
DECISION/ORDER
Motion Seq. No. 007 Recitation, as required by CPLR 2219 (a), of the papers considered in reviewing plaintiff's motion for leave to amend the complaint.
| PapersNumbered | |
|---|---|
| Plaintiff's Notice of Motion and Affirmation | 1 |
| Plaintiff's Memorandum of Law in Support | 2 |
| Defendant's Affirmation in Opposition | 3 |
| Defendant's Memorandum in Opposition | 4 |
D'Amato & Lynch, LLP, New York (Liza A. Chafiian of counsel), for defendant. Gerald Lebovits, J.
Plaintiff, Bianca Razzano, moves for an order amending her complaint to include emotional damages. Defendant, Woodstock Owners Corp., opposes this motion on the following grounds: (a) plaintiff's extensive and unexplained delay in seeking to amend her complaint; (b) prejudice to defendant that would result from the amendment; (c) insufficiency of the proposed amendment; and (d) plaintiff's failure to attach the proposed amendment to her first motion and the refiling of the instant motion almost five months beyond the deadline prescribed by this court in its order of November 1, 2017.
I. Background Plaintiff commenced this action on August 21, 2009, asserting five causes of action against defendant, defendant's Board of Directors (Board), Orsid Realty Corp., and April Anderson for (1) breach of duty of good faith and fair dealing; (2) misrepresentation; (3) negligent misrepresentation; (4) fraud; and (5) violating Business Corporation Law (BCL) § 501 (c). Plaintiff also alleged that defendant and Orsid breached their contractual obligations. Also plaintiff asserted three additional causes of action against defendant Board for (1) breach of duty and care; (2) violating the business judgement rule; and (3) breaching their fiduciary duties.
According to the complaint, plaintiff seeks to recover damages stemming from the denial of her request to sublet her cooperative apartment unit. Plaintiff claims that defendant's no-sublet policy was discriminatory and not equally applied to all shareholders. She maintains that, while shareholders who purchased apartment units before October 2002 were informed of the no-sublet policy, the rule unfairly applies only to shareholders who purchased units after October 2002. Plaintiff alleges that she suffered damages and seeks compensatory damages of not less than $40,000.00, consequential damages, incidental damages, and punitive damages, along with costs, interest and attorney fees.
On May 5, 2010, defendants moved to dismiss the complaint and for summary judgement seeking dismissal of the complaint. Plaintiff cross-moved for summary judgment. By a decision and order entered October 16, 2012, the Honorable Paul Wooten granted defendant's motion dismissing plaintiff's complaint in its entirety and denied plaintiff's cross-motion. (Mos' Affirmation in Support of Motion, Exhibit C.)
Plaintiff appealed the October 2012 order. On November 19, 2013, the Appellate Division, First Department, issued a decision that reversed in part Justice Wooten's October 2012 decision, and granted, in part, plaintiff's cross-motion to the extent of declaring that defendant's sublet policy violates BCL § 501 (c). In addition, the First Department held that plaintiff's appeal of all other causes of action unrelated to BCL § 501 (c) were deemed abandoned because plaintiff failed to address those issues on the appeal Thus plaintiff's sole remaining cause of action is defendant's alleged violation of BCL § 501 (c). (Moss Affirmation in Support of Motion, Exhibit D.)
Following the Appellate Division's decision, the parties engaged in further motion practice. Justice Wooten rendered a decision and order dated June 8, 2015, dismissing the case against all defendants except for defendant Woodstock Owners Corp. from this action. (Chafiian Affirmation in Opposition, Exhibit 6).
Justice Wooten struck the case from the trial calendar and disclosure resumed. (Moss' Affirmation in Support at ¶ 7.) During plaintiff's examination before trial (EBT), which was held on Skype on March 13, 2015, she explained her claims for damages for medical and psychological injury, including expenses. Further disclosure demands were exchanged by the parties, including authorizations to release plaintiff's medical records in connection with plaintiff's claim for emotional and stress-related damages. (Moss Affirmation in Support at ¶ 10.)
On January 19, 2017, defendant moved to compel plaintiff to disclose her medical records, and plaintiff cross-moved for a protective order. On July 19, 2017, this court granted defendant's motion to compel; this court also granted plaintiff's cross-motion "but only to the extent that plaintiff shall keep the records confidential and discovery records to exclude identifying factors." (Moss Affirmation in Support of Motion, Exhibit F.)
In an order dated November 1, 2017, this court directed plaintiff to file a motion within 60 days to amend her complaint to include additional damages for mental and physical injuries. This court warned plaintiff that her failure to comply with this order will preclude her from seeking "all such additional damages, including claims based on mental and physical injury." On May 31, 2018, plaintiff filed this motion.
II. Plaintiff's CPLR 3025 (b) Motion
Plaintiff's motion for leave to amend the complaint by increasing the ad damnum clause to include claims for emotional damages under CPLR 3025 (b) is denied. CPLR 3025 (b) provides that "[a] party may amend [a] pleading, or supplement it by setting forth additional or subsequent transactions or occurrences, at any time by leave of court or by stipulation of all parties. Leave shall be freely given upon such terms as may be just including the granting of costs and continuances." The determination of a motion for leave to amend a pleading "is committed to the court's discretion." (BGC Partners, Inc. v Refco Sec., LLC, 96 AD3d 601, 602 [1st Dept 2012] [citations omitted].)
Leave to amend is freely granted absent prejudice or surprise. (MBIA Ins. Corp. v Greystone & Co., Inc., 74 AD3d 499, 499 [1st Dept 2010].) The First Department recognizes the that "'[m]ere lateness is not a barrier to the amendment. It must be lateness coupled with significant prejudice to the other side.'" (Bishop v Maurer, 83 AD3d 483, 485 [1st Dept 2011] quoting Edenwald Contr. Co. City of New York, 60 NY2d 957, 959 [1983].) The burden of establishing prejudice is on the party opposing the amendment. (Hickey v Hutton, 182 AD2d 801, 802 [2d Dept 1992].)
A. Excuse and Prejudice.
A party seeking leave to amend a pleading must establish a reasonable excuse for the "inordinate delay." (Heller v Louis Provenzano, Inc., 303 AD2d 20, 23 [1st Dept 2003] ["As a result of plaintiff's inexcusable and inordinate delay [six years], defendants have been deprived of the opportunity to conduct discovery and establish a defense with respect to this belated damage claim."].) In Heller, plaintiff failed to explain in his moving papers the reasons for his delay. (Id.) Waiting six years from the time the moving party was aware of the facts upon which the motion to amend is predicated constitutes delay. (See BBCFD, S.A. v Bank Julius Baer & Co., Ltd., 62 AD3d 425, 426 [1st Dept 2009] ["The facts underlying Ivcher's proposed cross claims have been known to him since no later than 2004, if not as long ago as late 2001. His delay until August 2007 in requesting leave to amend his answer is inexcusable."]; Baby Togs, Inc. v Faleck & Margolies, Inc., 239 AD2d 278, 278 [1st Dept 1997] [holding that moving to amend the bill of particulars seven years after the first bill of particulars was served constitutes inordinate delay].)
Here, plaintiff does not deny knowing the factual basis of the proposed pleading nine years before moving to amend her complaint. Plaintiff admitted having sought psychological counseling or treatment from Dr. Andrew Gentile from March 4 through July 8, 2009, purportedly in relation to her claim for emotional damages. (Chafiian Affirmation in Opposition, Exhibit 9, ¶1.) Plaintiff knew about this possible claim against defendant for emotional damages when she filed the initial complaint on August 21, 2009. Notwithstanding that, plaintiff filed this motion for leave to amend her complaint nine years after commencing this action, and four years after her claims were dismissed, except for the claim alleging that defendant violated BCL § 501 (c).
Plaintiff explains that emotional damages were included in the compensatory damages request in her initial complaint. But plaintiff has no factual allegations in her initial complaint pertaining to those claims. Also, plaintiff has repeatedly denied that she is seeking damages for medical treatment:
a. In response to defendant's April 2, 2015, request for information on "[t]he amount of any damages [plaintiff] is seeking to recover for expenses of medical treatment, psychological treatment, counseling or any other services provided to her due to emotional or psychological stress claimed as damages in this action," plaintiff replied that she "is not seeking reimbursement for medical treatment, psychological treatment or counseling." (Chafiian Affirmation in Opposition, Exhibit 12 ¶19.)
b. In response to defendant's April 17, 2015, Third Set of Interrogatories requesting plaintiff to "[s]tate the amount of any damages plaintiff is seeking to recover medical expenses as set forth in plaintiff's deposition testimony dated March 13, 2015," plaintiff refused claiming it is "irrelevant as plaintiff is not seeking reimbursement." (Chafiian Affirmation in Opposition, Exhibit 15.)
c. On August 12, 2015, plaintiff refused to furnish defendant with documents evidencing medical expenses, psychological or counseling expenses because "plaintiff is not seeking reimbursement." (Chafiian Affirmation in Opposition, Exhibit 16.)
Plaintiff fails to offer a reasonable excuse for her delay in seeking the instant relief.
Defendant has demonstrated prejudice. To establish prejudice "there must be some indication that the defendant has been hindered in the preparation of his case or has been prevented from taking some measure in support of his position." (Giambrone v Kings Harbor Multicare Center, 104 AD3d 546, 548 [1st Dept 2013] [citations omitted]; Williams v New York Univ.y Hosp., 88 AD2d 540, 540 [1st Dept 1982]; Murray v City of New York, 51 AD3d 502, 503 [1st Dept 2008] ["Plaintiff demonstrated no prejudice—the loss of some special right, some change of position or some significant trouble or expense that could have been avoided had the original answer contained the defense—resulting directly from defendants' delay in seeking the amendment."].)
Defendant alleges that because of the inordinate delay, an order allowing an amendment would result in prejudice. Plaintiff claims that defendant would not be prejudiced in preparing its defense because it has been on notice of plaintiff's emotional damages claims since March 13, 2015. Furthermore, plaintiff implies that defendant ought to have exerted earnest efforts to compel plaintiff to produce her medical records after her refusal to do so absent a confidentiality agreement.
Defendant, however, argues that plaintiff authorized the release of the medical records establishing the latter's claims for emotional damages "[o]nly in late 2017, after several motions, including a discovery motion relating to this very matter, [and] after appearing at multiple court conferences" and in compliance with this court's July 19, 2017 order. By then, plaintiff's authorization came too late as plaintiff's doctor, Dr. Gentile, had already destroyed his files because of the passage of time. (Chafiian Affirmation in Opposition, Exhibit 23.)
Plaintiff admits to seeking psychological treatment from Dr. Gentile from March 4 through July 8, 2009. (Chafiian Affirmation in Opposition, Exhibit 9 ¶1.) Consistent with the New York State Board of Psychology's Rules of the Board of Regents, § 29.2 (a) (3), Unprofessional Conduct, Dr. Gentile was required to retain copies of plaintiff's patient records only for at least six years, or until July 7, 2015. Had the emotional damages been included in the initial complaint, defendant would have had at most six years within which to secure the medical records. Even taking into account the one-year period in which the appeal was pending, defendant would still have had five years to request the records.
Because of plaintiff's failure to include the claim for emotional damages in the initial complaint, the March 4, 2009 medical records were already destroyed by the time defendant was put on notice of plaintiff's claims. As for the July 8, 2009, medical records, defendant would most likely have secured copies of it had plaintiff complied with defendant's April 17, 2015, request for its release. Plaintiff's belated release of the authorization sometime in late 2017 rendered the authorization worthless. The requested documents had long been destroyed.
Because of plaintiff's inexcusable delay in amending her complaint, along with her persistent refusal to release the requested authorizations and the fact that her medical records have been destroyed, defendant is unduly prejudiced.
B. Whether Plaintiff's Motion to Amend is Procedurally Defective
Defendant contends that the motion should be denied because plaintiff failed to attach a copy of the proposed amendment. CPLR 3025 (b) was amended, effective January 1, 2012, to provide that "[a]ny motion to amend or supplement pleadings shall be accompanied by the proposed amended or supplemental pleading clearly showing the changes or additions to be made to the pleading." Given the express language of CPLR 3205, the court must deny plaintiff's motion for leave to amend.
Notably, the parties stipulated and this court so-ordered the stipulation on November 1, 2017, directing plaintiff to file a motion for leave to amend the complaint within 60 days, or until December 31, 2017. This court further warned that if plaintiff failed to do so within the agreed deadline, plaintiff would be precluded from "seeking all such additional damages, including claims based on mental and physical injury." (Chafiian Affirmation in Opposition, Exhibit 2.) Plaintiff filed her motion in May 2018, almost five months after the stipulated deadline. Plaintiff does not explain her failure to comply with the deadline.
Plaintiff's proposed amendment is to include the words "including emotional damages and stress-related damages" in her ad damnum clause. It is unclear why plaintiff delayed in moving to amend her complaint given the simplicity of her request.
Plaintiff's motion for leave to amend is denied.
Accordingly, it is hereby
ORDERED that plaintiff's motion for leave to amend is denied. 10/9/2018
DATE
/s/ _________
GERALD LEBOVITS, J.S.C.