| Ciarelli v Lynch |
| 2007 NY Slip Op 09835 [46 AD3d 1039] |
| December 13, 2007 |
| Appellate Division, Third Department |
| George M. Ciarelli et al., Appellants, v Christopher Lynch et al.,Respondents. |
—[*1] Ayers Law Firm, P.L.L.C., Palatine Bridge (Laura E. Ayers of counsel), forrespondents.
Mercure, J.P. Appeal from an order of the Supreme Court (Lamont, J.), entered January 25,2007 in Schoharie County, which, among other things, partially denied plaintiffs' motion forleave to amend their pleadings.
Upon defendants' prior appeal from a jury verdict in this action to quiet title, this Courtconcluded that Supreme Court (Malone, Jr., J.) had erred when charging the jury by sua sponteintroducing an unpleaded affirmative defense to defendants' counterclaims alleging that theypossessed an easement across plaintiffs' property (22 AD3d 987 [2005]).[FN*]Accordingly, we granted defendants' motion to set aside the verdict, and remitted to SupremeCourt for a determination on whether plaintiffs should be permitted to amend their pleadings(id.). Thereafter, plaintiffs moved to amend their pleadings to include affirmativedefenses of adverse possession and extinguishment by conveyance to a bona fide purchaserwithout knowledge of the easement. Supreme Court (Lamont, J.) granted the motion insofar asplaintiffs sought to assert adverse possession, but denied the motion with respect to theextinguishment by conveyance defense. Plaintiffs appeal and we now affirm.[*2]
It is well settled that " '[p]rovided that there is noprejudice to the nonmoving party and the amendment is not plainly lacking in merit, leave toamend pleadings under CPLR 3025 (b) should be freely granted' " (Smith v Haggerty, 16 AD3d 967,967-968 [2005], quoting State of New York v Ladd's Gas Sta., 198 AD2d 654, 654[1993]; see Edenwald Contr. Co. v City of New York, 60 NY2d 957, 959 [1983]).Nevertheless, " 'the decision whether to permit an amendment to a pleading is one that lies in thediscretion of the trial court . . . [which] will not lightly be set aside' " (Thomas v Laustrup, 34 AD3d1115, 1116 [2006], quoting U.W. Marx, Inc. v Mountbatten Sur. Co., 290 AD2d621, 623 [2002] [internal quotation marks and citations omitted]). Although " '[m]ere lateness inseeking such relief is not in itself sufficient to bar amendment' " (Thomas v Laustrup, 34AD3d at 1116, quoting State of New York v Super Value, 257 AD2d 708, 710 [1999],lv denied 93 NY2d 815 [1999]), denial of a motion to amend is appropriate when there isprejudice to the opposing party and no showing of a satisfactory excuse for the delay (see Harris v Jim's Proclean Serv., Inc.,34 AD3d 1009, 1010 [2006]; Sadler v Town of Hurley, 304 AD2d 930, 931 [2003]).Here, we agree with Supreme Court that plaintiffs have not demonstrated any excuse for thedelay and that the proposed amendment both introduces a new legal theory and sets forth newfacts based upon a transaction that occurred over 50 years ago. Given the absence of any excuseand "the significant passage of time since this [transaction], permitting plaintiffs to assertadditional claims at this late juncture would prejudice defendants," and the court did not abuse itsdiscretion in partially denying the motion (Thibeault v Palma, 266 AD2d 616, 617[1999]; see Harris v Jim's Proclean Serv., Inc., 34 AD3d at 1011; Sadler v Town ofHurley, 304 AD2d at 931; cf. Thomas v Laustrup, 34 AD3d at 1116).
Mugglin, Rose, Lahtinen and Kane, JJ., concur. Ordered that the order is affirmed, withcosts.
Footnote *: A more thorough recitation ofthe underlying facts may be found in our prior decision.