CPLR R. 3025 Amended and supplemental pleadings
(d) Responses to amended or supplemental pleadings
Briarpatch Ltd., L.P. v Briarpatch Film Corp., 2009 NY Slip Op 02463 (App. Div., 1st, 2009)
Order, Supreme Court, New York County (Richard B. Lowe III, J.),
entered June 18, 2008, which denied plaintiffs' motion for leave to
amend the third amended complaint, unanimously reversed, on the law,
without costs, the motion granted, and the matter remanded for further
proceedings including further discovery. Orders, same court and
Justice, entered September 12, 2008, which denied renewal of
plaintiffs' motion for leave to amend the complaint, and which closed
discovery in this action and directed that plaintiffs file a note of
issue, unanimously dismissed, without costs, as academic in view of the
foregoing.Leave to amend pleadings is to be freely given, absent a showing of prejudice or surprise (see CPLR 3025[b]; Edenwald Contr. Co. v City of New York,
60 NY2d 957, 959 [1983]). Here, there was no showing of prejudice or
surprise resulting from plaintiffs' delay in asserting new claims to
conform the complaint to the proof (CPLR 3025[c]) and to increase the
ad damnum clause, especially in light of the history of defendants'
belated responses to plaintiffs' discovery demands (see Curiale v Ardra Ins. Co., 223 AD2d 445 [1996]). Nor were plaintiffs' moving papers unreliable or insufficient to support the new claims (see Peach Parking Corp. v 346 W. 40th St., LLC, 52 AD3d 260
[2008]). Defendants' discovery responses were provided to plaintiffs
after the latest amendment of the complaint and attached to plaintiffs'
motion. The responses sufficiently demonstrated the merits for purposes
of amending the complaint to assert new claims for violation of a
restraining notice (CPLR 5222) and slander of title (see 39 Coll. Point Corp. v [*2]Transpac Capital Corp., 27 AD3d 454 [2006]). Accordingly, leave to amend should have been granted, and discovery should proceed.
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