Wednesday, December 9, 2015

Leave to amend a summons and complaint.

Practice point:  The Appellate Division reversed the motion court, finding that it improvidently exercised its discretion in denying plaintiff's cross motion to substitute an identified defendant in the summons and complaint, pursuant to CPLR 305[c], 1024 and 3025. There was no evidence of any prejudice or surprise to the proposed defendant resulting from the substitution, and defendant City of New York stated that it had no substantive objection to plaintiff's cross motion to the extent it sought leave to substitute the identified police officer for a "John/Jane Doe" defendant.

Student note:  Since the limited proposed amendments were clearly described in the moving papers, plaintiff's failure to submit proposed amended pleadings with his original moving papers, pursuant to CPLR 3025[b], was a technical defect, which the court should have overlooked, pursuant to CPLR 2001, particularly after plaintiff provided those documents with his reply.

Case:  Medina v. City of New York, NY Slip Op 08909 (1st Dept. 2015)

Here is the decision.

Tomorrow's issue: A rear-end collision.