Tuesday, August 5, 2014

Motion to amend the complaint is granted.

Practice point:  The Appellate Division reversed the motion court's denial of plaintiff's motion pursuant to CPLR 3025(b) for leave to serve a second amended complaint to add a cause of action to recover damages for negligence per se and a claim for punitive damages. Defendants did not allege that the proposed amendment would result in any prejudice or surprise. Indeed, plaintiff's motion was made prior to the filing of the note of issue, and was predicated on information supplied by defendants during disclosure.  Further, the proposed amendment was not palpably insufficient or patently devoid of merit.  Finally, the motion court erred in prematurely determining that the proposed amendment "would invite the jury to speculate."  The rule is that if the opposing party wishes to test the merits of the proposed added cause of action, that party may later move for summary judgment upon a proper showing.

Student note:  An evidentiary showing of merit is not required under CPLR 3025(b)Instead, the court need only determine whether the proposed amendment is palpably insufficient' to state a cause of action or defense, or is patently devoid of merit. The court may not examine the legal sufficiency or merits of a pleading unless such insufficiency or lack of merit is clear and free from doubt.

Case:  Favia v. Harley-Davidson Motor Co., Inc., NY Slip Op 05408 (2d Dept. 2014)

Here is the decision.

Tomorrow's issue:  Bad weather,  a bad fall, and a bad result for the injured plaintiff.