Opinion
94671.
Decided and Entered: March 4, 2004.
Appeal from a judgment of the Supreme Court (Stein, J.), entered August 4, 2003 in Columbia County, which, inter alia, denied plaintiff's motion for leave to serve a second amended complaint.
Rapport, Meyers, Whitbeck, Shaw Rodenhausen L.L.P., Hudson (Jason L. Shaw of counsel), for appellant.
Connor, Curran Schram P.C., Hudson (Paul M. Freeman of counsel), for respondents.
Before: Cardona, P.J., Mercure, Peters, Mugglin and Kane, JJ.
MEMORANDUM AND ORDER
On two prior occasions in the eight-year history of this litigation, we have reviewed various issues (see 293 A.D.2d 948; 270 A.D.2d 760). Plaintiff's current motion seeks leave to amend the complaint to eliminate those parties with whom she has previously settled, i.e., everyone except defendants L. Bogdanow and Associates, Architects and Lawrence Bogdanow (hereinafter collectively referred to as Bogdanow), to eliminate a cause of action for architectural malpractice and to modify her breach of contract action against Bogdanow to allegations concerning only the design of the roof and the failure to specify the installation of an infiltration barrier, thus reducing the amount of damages sought. Supreme Court's denial of the motion prompts this appeal.
Supreme Court's denial of plaintiff's motion to add Bogdanow's recently formed corporation as a party defendant has not been addressed by plaintiff in her brief and is, therefore, abandoned (see Gibeault v. Home Ins. Co., 221 A.D.2d 826, 827 n 2 [1995]).
Leave to amend a complaint is freely granted in the absence of prejudice or surprise resulting from delay in making the motion unless the proposed amendment is devoid of merit (see Moon v. Clear Channel Communications, 307 A.D.2d 628, 629; Acker v. Garson, 306 A.D.2d 609, 609-610; Selective Ins. Co. v. Northeast Fire Protection Sys., 300 A.D.2d 883, 883). Such motions are addressed to the discretion of the trial court, whose decision remains undisturbed absent clear abuse (see Albany-Plattsburgh United Corp. v. Bell, 307 A.D.2d 416, 420-421; Matter of Seelig, 302 A.D.2d 721, 723; Aiello v. Manufacturers Life Ins. Co. of N.Y., 298 A.D.2d 662, 662,lv dismissed, lv denied 99 N.Y.2d 575).
Prejudice to the nonmoving party is shown where that party is "hindered in the preparation of its case or has been prevented from taking some measure in support of its position" (Pritzakis v. Sbarra, 201 A.D.2d 797, 799; see State of New York v. Super Value, 257 A.D.2d 708, 710, lv denied 93 N.Y.2d 815; Garrison v. Clark Mun. Equip, 239 A.D.2d 742, 742-743). Here, because all prior pleadings are superceded by the amended pleading (see Schoenborn v. Kinderhill Corp., 98 A.D.2d 831, 832), Supreme Court determined that Bogdanow would be prejudiced by its inability to question plaintiff's motivation and credibility through the use of allegations contained in her prior complaints. Plaintiff's arguments for simplification of issues and concerning alternate sources for attacking her motivation and credibility notwithstanding, we find no clear abuse of Supreme Court's exercise of its discretion, particularly where, as here, plaintiff can voluntarily limit the proof at trial without amending the pleading and she waited in excess of one year from our last decision to make the motion ( see Thibeault v. Palma, 266 A.D.2d 616, 617).
Cardona, P.J., Mercure, Peters and Kane, JJ., concur.
ORDERED that the judgment is affirmed, with costs.