| Schelchere v Halls |
| 2014 NY Slip Op 05970 [120 AD3d 788] |
| August 27, 2014 |
| Appellate Division, Second Department |
[*1]
| Peter Jason Schelchere et al.,Appellants, v Francis R. Halls, Respondent. |
Jan Meyer & Associates, P.C., New York, N.Y. (Solomon Rubin of counsel),for appellants.
Gannon, Rosenfarb, Balletti & Drossman, New York, N.Y. (Lisa L.Gokhulsingh of counsel), for respondent.
In an action to recover damages for personal injuries, the plaintiffs appeal from anorder of the Supreme Court, Kings County (Bayne, J.), dated November 20, 2013, whichdenied their motion for leave to amend the complaint to assert additional causes of actionalleging negligent infliction of emotional distress and breach of contract.
Ordered that the order is affirmed, with costs.
Leave to amend pleadings should be freely given, provided that the proposedamendment does not prejudice or surprise the opposing party and is not palpablyinsufficient or patently devoid of merit (see Edenwald Contr. Co. v City of NewYork, 60 NY2d 957, 959 [1983]; Countrywide Home Loans, Inc. v Gibson, 111 AD3d 875,876 [2013]; Kruger v EMFT,LLC, 87 AD3d 717, 718 [2011]). A motion to amend is addressed to the sounddiscretion of the court, and its determination will not lightly be set aside (seeEdenwald Contr. Co. v City of New York, 60 NY2d at 959; Pappas &Marshall v Ross Logistics, 222 AD2d 424 [1995]; Caruso v Anpro, Ltd., 215AD2d 713 [1995]).
Here, given the plaintiffs' extensive and unexplained delay in seeking to amend theircomplaint based on facts that were known to them since the onset of the litigation(see Heller v Louis Provenzano, Inc., 303 AD2d 20, 24 [2003]; Whalen v 50Sutton Place S. Owners, 276 AD2d 356, 357 [2000]; Caruso v Anpro, Ltd.,215 AD2d 713, 714 [1995]), the prejudice to the defendant that would result from theamendment, and the plaintiffs' improper submission of a portion of their request for leaveto amend and supporting evidence for the first time in their reply papers on the motion(see Bjorke v Rubenstein,38 AD3d 580, 581 [2007]; Drake v Drake, 296 AD2d 566 [2002];Wright v Cetek Technologies, 289 AD2d 569, 570 [2001]), the Supreme Courtprovidently exercised its discretion in denying the plaintiffs' motion for leave to amendthe complaint. Mastro, J.P., Dillon, Miller and Maltese, JJ., concur.