| McGhee v Odell |
| 2012 NY Slip Op 04397 [96 AD3d 449] |
| June 7, 2012 |
| Appellate Division, First Department |
| Stephen McGhee, Appellant, v Nancy Brensson Odell,Individually and as Executrix of Juris Brensson and Another, Deceased,Respondent. |
—[*1] Wells, Jaworski & Liebman, LLP, New York (Sylvia Hall of counsel), forrespondent.
Order, Supreme Court, New York County (Saliann Scarpulla, J.), entered on February 2,2012, which, to the extent appealed from as limited by the briefs, denied plaintiff's motion forleave to amend the complaint, unanimously modified, on the law, to grant plaintiff leave to filethe proposed amended complaint except insofar as it asserts the cause of action for breach ofcontract against defendant individually, and otherwise affirmed, without costs.
During the administration of decedents Juris and Baiba Brensson's estates, plaintiff informeddefendant executrix of his claim to co-ownership of the bottom portion of a rare cello locatedamong the estates' assets. Although defendant informed plaintiff that efforts would be made tolocate the cello upon some proof of his claim, which he subsequently provided, the cello was notproduced. Accordingly, plaintiff brought suit alleging breach of fiduciary duty and conversion.During discovery, it was revealed that the Surrogate's Court had been informed that plaintiff'sclaim to the cello was without foundation, and that thereafter, the cello was sold at a Christie'sauction for $21,500. Plaintiff then sought leave to amend his complaint to add claims for fraudand breach of contract, which Supreme Court denied.
Leave to amend pleadings under CPLR 3025 (b) should be freely given, and denied only ifthere is "prejudice or surprise resulting directly from the delay" (McCaskey, Davies & Assoc.v New York City Health & Hosps. Corp., 59 NY2d 755, 757 [1983]), or if the proposedamendment "is palpably improper or insufficient as a matter of law" (Shepherd v New YorkCity Tr. Auth., 129 AD2d 574, 574 [1987]). A party opposing leave to amend "mustovercome a heavy presumption of validity in favor of [permitting amendment]" (Otis El. Co.v 1166 Ave. of Ams. Condominium, 166 AD2d 307 [1990]). Prejudice to warrant denial ofleave to amend requires " 'some indication that the defendant[s] ha[ve] been hindered in thepreparation of [their] case or has been prevented from taking some measure in support of [their]position' " (Kocourek v Booz AllenHamilton Inc., 85 AD3d 502, 504 [2011] [citation omitted]).
Plaintiff's amended complaint and the documents submitted in support of his motion, whichinclude Christie's records documenting the cello's sale subsequent to the making of plaintiff'sclaim, allege facts which reasonably infer the existence of a fraud action's requisite elements, i.e.,a false representation concerning a material fact, scienter, reliance, and damages (see StuartSilver Assoc. v Baco Dev. Corp., 245 AD2d 96, 98 [1997]). Likewise, the complaint andsupporting documents allege facts of plaintiff's performance under an agreement with thedecedents to co-own the cello, the breach of that agreement by the decedents or by defendant inher capacity as representative of their respective estates, and resulting damages, so as to support aclaim for breach of contract against defendant as executrix of the estates (JP Morgan Chase v J.H. Elec. of N.Y.,Inc., 69 AD3d 802, 803 [2010]).
We discern no cognizable prejudice to defendant by allowing the amendment. Defendant'sargument that plaintiff's action is time-barred under the laws of New Jersey, where the estateswere administered, having not been raised below, is unpreserved for our consideration on thisappeal (Geron v DeSantis, 89 AD3d603, 604 [2011]). Concur—Gonzalez, P.J., Friedman, Renwick, Manzanet-Danielsand Román, JJ.