| Trataros Constr., Inc. v New York City School Constr. Auth. |
| 2007 NY Slip Op 10527 [46 AD3d 874] |
| December 26, 2007 |
| Appellate Division, Second Department |
| Trataros Construction, Inc., Respondent, v New York CitySchool Construction Authority, Appellant. |
—[*1] Georgoulis & Associates, PLLC, New York, N.Y. (George Marco and Susan R. Nudelman ofcounsel), for respondent.
In an action to recover damages for breach of contract, the defendant appeals, as limited byits brief, from so much of an order of the Supreme Court, Kings County (Schmidt, J.), dated June16, 2006, as denied its motion for leave to amend the answer and for summary judgmentdismissing the complaint.
Ordered that the order is affirmed insofar as appealed from, with costs.
In general, "[i]n the absence of prejudice or surprise to the opposing party, leave to amend apleading should be freely granted unless the proposed amendment is palpably insufficient orpatently devoid of merit" (G.K. AlanAssoc., Inc. v Lazzari, 44 AD3d 95, 99 [2007]). Where, however, "an application forleave to amend is sought after a long delay and the case has been certified as ready for trial,'judicial discretion in allowing such amendments should be discrete, circumspect, prudent andcautious' " (Countrywide Funding Corp.v Reynolds, 41 AD3d 524, 525 [2007], quoting Clarkin v Staten Is. Univ. Hosp.,242 AD2d 552 [1997]). The court's exercise of discretion in determining such an application willnot lightly be disturbed (see Sewkarranv DeBellis, 11 AD3d 445 [2004]).
Here, the Supreme Court providently exercised its discretion in denying that branch of thedefendant's motion which was for leave to amend its answer to assert defenses and counterclaimsbased on fraud (see CPLR 3025 [b]; Sewkarran v DeBellis, 11 AD3d 445, 445-446 [2004]). [*2]The defendant unreasonably delayed seeking to assert thesedefenses and counterclaims until the eve of trial despite its long-standing awareness of theiravailability.
After years of litigating the merits, the defendant New York City School ConstructionAuthority (hereinafter the SCA) made its motion for leave to amend the answer on the basis offacts of which it was aware in 1999, when it secured the plaintiff's agreement to oversight by anIndependent Private Sector Inspector General (hereinafter IPSIG). It expressly reserved its rightto seek restitution based on fraud in the inducement stemming from any false statements made bythe plaintiff on prequalification forms. The branch of the motion which was for leave to amendthe answer, made six years later to accomplish the result it reserved in the IPSIG agreement,constitutes unfair surprise (cf. G.K. Alan Assoc., Inc. v Lazzari, 44 AD3d at 99; Trataros Constr., Inc. v New York CityHous. Auth., 34 AD3d 451, 453 [2006]). Further, the SCA's litigation stance up to thepoint at which it sought to amend its pleading was inconsistent with the assertion of thesedefenses and counterclaims. Consequently, its eleventh-hour attempt to interpose them wasproperly rejected.
In light of our determination, we do not reach the parties' remaining contentions. Crane, J.P.,Spolzino, Krausman and McCarthy, JJ., concur.