CPLR R. 3025(b) Leave to Amend Granted on Eve of Trial

CPLR R. 3025 Amended and supplemental pleadings
(b) Amendments and supplemental pleadings by leave

Reyes v City of New York, 2009 NY Slip Op 05267 (App. Div., 1st, 2009)

The trial court providently exercised its discretion in granting
plaintiff leave to amend her pleadings on the eve of trial to allege
prior written notice, where such amendment did not prejudice or
surprise defendant (CPLR 3025[b
]; see Edenwald Contr. Co. v City of New York, 60 NY2d 957, 959 [1983]; Mezzacappa Bros., Inc v City of New York, 29 AD3d 494 [2006], lv denied
7 NY3d 712 [2006]). Plaintiff alleged actual notice in her initial
pleadings, and based on the service of a notice to admit attaching the
Big Apple Map and receipt of the map by the Department of
Transportation, defendant was aware at least five years prior to trial
that plaintiff [*2]intended to rely upon prior written notice.

ADA Dining Corp. v 208 E. 58th St., LLC, 2009 NY Slip Op 05173 (App. Div., 1st, 2009)

The court exercised its discretion in a provident manner in granting
the cross motion to amend the complaint (CPLR 3025[b]), and in
declining to dismiss said amended complaint as materially different
from the proposed amended complaint inasmuch as the new claims had
merit and were properly pleaded
(see Thomas Crimmins Contr. Co. v City of New York, 74 NY2d 166, 170 [1989]; Peach Parking Corp. v 346 W. 40th St., LLC, 42 AD3d 82,
86 [2007]). There was no surprise since the court had not only
discussed the issue of accord and satisfaction in its decision, but the
amended complaint was in accordance with the June 3, 2008 order, which
specifically permitted plaintiffs to include the allegations contained
in the discontinued Florida action.

Furthermore, the allegations of accord and satisfaction
sufficiently pleaded the existence of a written and signed accord
(General Obligations Law § 15-501[2]), based upon the August 2007
agreement which included an option to purchase the building at a set
price that purportedly subsumed the claimed overdue rent (see Porthos v Arverne Houses,
269 AD2d 377 [2000] [party seeking to establish an accord and
satisfaction must show a disputed claim which the parties mutually
resolved through a new contract discharging all or part of prior
contractual obligations]). 

The bold is mine

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

%d bloggers like this: