| Courtview Owners Corp. v Courtview Holding B.V. |
| 2014 NY Slip Op 00322 [113 AD3d 722] |
| January 22, 2014 |
| Appellate Division, Second Department |
| Courtview Owners Corp.,Appellant-Respondent, v Courtview Holding B.V. et al.,Respondents-Appellants. |
—[*1] Belkin Burden Wenig & Goldman, LLP, New York, N.Y. (Jeffrey L. Goldman,Magda L. Cruz, David R. Brand, and Alexa Englander of counsel), forrespondents-appellants.
In an action, inter alia, for declaratory relief, the plaintiff appeals, as limited by itsbrief, from (1) so much of an order of the Supreme Court, Queens County (Nahman, J.),entered January 27, 2012, as denied its motion for leave to amend the complaint to asserta cause of action to recover damages for breach of fiduciary duty and for summaryjudgment on that cause of action and on the causes of action for declaratory relief andejectment, and (2) so much of an order of the same court entered May 8, 2012, as, ineffect, denied that branch of its motion which was for leave to renew its prior motion,and the defendants cross-appeal, as limited by their brief, from (1) so much of the orderentered January 27, 2012, as denied their cross motion for summary judgment dismissingthe cause of action for ejectment and in connection with the cause of action fordeclaratory relief, and (2) so much of the order entered May 8, 2012, as, in effect, deniedthat branch of their cross motion which was for leave to renew their prior cross motion.
Ordered that the orders are affirmed insofar as appealed and cross-appealed from,without costs or disbursements.
"Leave to amend a pleading pursuant to CPLR 3025 (b) should be freely grantedunless the proposed amendment is palpably insufficient or patently devoid of merit, orunless prejudice or surprise to the opposing party results directly from the delay inseeking leave to amend" (Kruger v EMFT, LLC, 87 AD3d 717, 718 [2011]; seeCPLR 3025 [b]; Lucido vMancuso, 49 AD3d 220, 225-229 [2008]). "A determination whether to grantsuch leave is within the Supreme Court's broad discretion, and the exercise of thatdiscretion will not be lightly disturbed" (Bank of Smithtown v 219 Sagg Main, LLC, 107 AD3d654, 655 [2013] [internal quotation marks omitted]; see Sanatass v Town of N.Hempstead, 64 AD3d 695, 695 [2009]). Under the circumstances of this case,the Supreme Court providently exercised its discretion in denying that branch of theplaintiff's motion which was for leave to amend the complaint to assert a cause of actionto recover damages for breach of fiduciary duty.[*2]
Further, the Supreme Court properly denied, asuntimely, those branches of the plaintiff's motion which were for summary judgment, andthe defendants' cross motion for summary judgment, as the parties failed to demonstrategood cause for making their respective motion and cross motion more than 60 days afterthe filing of the note of issue, as required by a preliminary conference order (see Rivera v New York Presbyt.Hosp., 57 AD3d 755 [2008]; Jackson v Jamaica First Parking, LLC, 49 AD3d 501, 501[2008]; Coty v County ofClinton, 42 AD3d 612, 614 [2007]). While significant outstanding discoverymay, in certain circumstances, constitute good cause for a delay in making a motion forsummary judgment (see Gonzalez v 98 Mag Leasing Corp., 95 NY2d 124, 129[2000]; Kung v Zheng, 73AD3d 862, 863 [2010]), contrary to the defendants' contention, the discoveryoutstanding at the time the note of issue was filed was not essential to their cross motion(see Avezbakiyev v City of NewYork, 104 AD3d 888, 888-889 [2013]; Greenpoint Props., Inc. v Carter, 82 AD3d 1157, 1158[2011]).
Moreover, the Supreme Court properly denied those branches of the parties'respective motion and cross motion which were for leave to renew, as the "new facts"offered would not "change the prior determination" (CPLR 2221 [e] [2]; see Tingling v C.I.N.H.R.,Inc., 74 AD3d 954, 956 [2010]).
In light of our determination, we need not reach the parties' remaining contentions.Eng, P.J., Balkin, Lott and Roman, JJ., concur.