| Koch v Acker, Merrall & Condit Co. |
| 2014 NY Slip Op 01284 [114 AD3d 596] |
| February 25, 2014 |
| Appellate Division, First Department |
| William I. Koch, Appellant, v Acker, Merrall &Condit Company, Respondent. |
—[*1] Meister Seelig & Fein LLP, New York (Stephen B. Meister of counsel), forrespondent.
Order, Supreme Court, New York County (Martin Shulman, J.), entered July 9, 2013,which, insofar as appealed from as limited by the briefs, denied plaintiff's motion forleave to amend the complaint to assert new claims relating to an additional 211 bottles ofallegedly counterfeit wine, unanimously reversed, on the law and the facts, without costs,and the motion granted.
The original complaint alleged that, in four separate transactions in April, May andJuly 2005 and January 2006, defendant sold plaintiff "numerous bottles" of wine, ofwhich "at least" five were counterfeit, and that "additional bottles [were] suspect,requiring further research." These allegations placed defendant on notice that, as a resultof "further research" on the "numerous bottles" of wine that defendant had sold him(about 1,500, according to defendant), plaintiff might assert additional claims relating toother bottles, such as the 211 additional bottles complained of in the amended complaint.Most of those additional 211 bottles were sold in the four transactions identified in theoriginal complaint, and all of them were sold during the 10-month period identified inthe original complaint. Thus, the original complaint gave defendant notice of thetransactions or series of transactions to be proved pursuant to the amended complaint,and the new claims are deemed to relate back to the original complaint, for purposes ofthe statute of limitations (see CPLR 203 [f]; Jennings-Purnell v Jennings, 107 AD3d 513 [1st Dept2013]; Giambrone v KingsHarbor Multicare Ctr., 104 AD3d 546, 548 [1st Dept 2013]).
The amendment of the complaint will not unduly prejudice defendant. "Prejudicedoes not occur simply because a defendant is exposed to greater liability or. . . has to expend additional time preparing its case" (Jacobson v McNeil Consumer &Specialty Pharms., 68 AD3d 652, 654 [1st Dept 2009] [internal citationomitted]; Giambrone, 104 AD3d at 548). In any event, the motion court grantedplaintiff leave to amend the complaint to add significant factual allegations relating todefendant's relationship with an allegedly criminal purveyor of wines (that part of the[*2]order is not at issue on this appeal), which willrequire additional discovery. Absent any other prejudice, the fact that plaintiff waiteduntil after resolution of the interlocutory appeals is not sufficient reason to deny hismotion (see Jacobson, 68 AD3d at 655). Concur—Sweeny, J.P., Andrias,Moskowitz, DeGrasse and Gische, JJ. [Prior Case History: 2013 NY Slip Op31572(U).]