| Yong Soon Oh v Hua Jin |
| 2015 NY Slip Op 00362 [124 AD3d 639] |
| January 14, 2015 |
| Appellate Division, Second Department |
[*1]
| Yong Soon Oh, Appellant, v Hua Jin,Respondent. |
Bornstein & Emanuel, P.C. (Anita Nissan Yehuda, P.C., Roslyn, N.Y., ofcounsel), for appellant.
Kral Clerkin Redmond Ryan Perry & Van Etten, LLP, Melville, N.Y. (HenryM. Primavera and Angie Aguilar of counsel), for respondent.
In an action to recover damages for personal injuries, the plaintiff appeals, as limitedby her brief, from so much of an order of the Supreme Court, Queens County (Golia, J.),dated November 8, 2013, as granted that branch of the defendant's motion which waspursuant to CPLR 3025 (b) for leave to amend the answer and, sua sponte, modified aprior order of the same court dated May 22, 2013, by deleting the provision thereofconditionally precluding the defendant from offering any evidence at trial, andsubstituting therefor a provision conditionally precluding the defendant from testifying attrial.
Ordered that on the Court's own motion, the notice of appeal from so much of theorder dated November 8, 2013, as, sua sponte, modified a prior order of the same courtdated May 22, 2013, by deleting the provision thereof conditionally precluding thedefendant from offering any evidence at trial, and substituting therefor a provisionconditionally precluding the defendant from testifying at trial, is deemed an applicationfor leave to appeal from that portion of the order, and leave to appeal is granted(see CPLR 5701 [c]); and it is further,
Ordered that the order dated November 8, 2013, is reversed insofar as appealed from,on the law and in the exercise of discretion, with costs, and that branch of the defendant'smotion which was pursuant to CPLR 3025 (b) for leave to amend the answer isdenied.
The plaintiff allegedly sustained personal injuries when she slipped and fell on asidewalk adjacent to certain property located at 15-51 215th Street in Bayside, Queens.The plaintiff commenced this action in January 2011, alleging that the defendant was theowner of the subject property and that his negligence caused her injuries. In his answer,the defendant admitted ownership of the subject property.
The defendant repeatedly failed to appear for his court-ordered depositions. After theplaintiff filed a note of issue at the direction of the Supreme Court, she moved to strikethe defendant's answer pursuant to CPLR 3126. In an order dated May 22, 2013, theSupreme Court granted the plaintiff's motion to the extent of directing that the defendantwould be precluded from offering any evidence at trial if he failed to appear for adeposition within 30 days after service of the order.
[*2] The defendant failed to appear for a deposition within30 days after being served with a copy of the order dated May 22, 2013. By notice datedJuly 2, 2013, the defendant moved, inter alia, pursuant to CPLR 3025 (b) for leave toamend his answer so that he could deny ownership of the subject property. The SupremeCourt granted that branch of the defendant's motion and, sua sponte, modified the orderdated May 22, 2013, by deleting the provision conditionally precluding the defendantfrom offering any evidence at trial, and substituting a provision conditionally precludingthe defendant from testifying at trial.
"A party may amend his or her pleading . . . at any time by leave ofcourt or by stipulation of all parties" (CPLR 3025 [b]). "Leave shall be freely given uponsuch terms as may be just including the granting of costs and continuances" (CPLR 3025[b]).
While leave to amend a pleading shall be freely granted (see CPLR 3025 [b]),a motion for leave to amend is committed to the broad discretion of the court (see Ravnikar v SkylineCredit-Ride, Inc., 79 AD3d 1118, 1119 [2010]). "In exercising its discretion, thecourt should consider how long the party seeking the amendment was aware of the factsupon which the motion was predicated [and] whether a reasonable excuse for the delaywas offered" (Cohen v Ho,38 AD3d 705, 706 [2007];see American Cleaners, Inc. v American Intl. Specialty Lines Ins. Co., 68 AD3d792, 794 [2009]). Generally, in the absence of prejudice or surprise to the opposingparty, leave to amend pleadings should be freely granted unless the proposed amendmentis palpably insufficient or patently devoid of merit (see Rodgers v New York City Tr. Auth., 109 AD3d 535,537 [2013]; Schwartz vSayah, 83 AD3d 926, 926 [2011]).
"However, where the application for leave to amend is made long after the action hasbeen certified for trial, 'judicial discretion in allowing such amendments should bediscrete, circumspect, prudent, and cautious' " (Morris v Queens Long Is. Med.Group, P.C., 49 AD3d 827, 828 [2008], quoting Clarkin v Staten Is. Univ.Hosp., 242 AD2d 552, 552 [1997]; see Alrose Oceanside, LLC v Mueller, 81 AD3d 574, 575[2011]; Countrywide FundingCorp. v Reynolds, 41 AD3d 524, 525 [2007]). "Moreover, when. . . leave is sought on the eve of trial, judicial discretion should beexercised sparingly" (Morris v Queens Long Is. Med. Group, P.C., 49 AD3d at828; see Comsewogue UnionFree School Dist. v Allied-Trent Roofing Sys., Inc., 15 AD3d 523, 525[2005]).
Under the circumstances of this case, including the fact that the defendant admittedin his answer that he owned the subject property and maintained this position until afterthe note of issue had been filed, as well as the lateness of his request for leave to amend,the prejudice and surprise to the plaintiff, and the lack of any reasonable excuse for thedelay, the Supreme Court improvidently exercised its discretion in granting that branchof the defendant's motion which was pursuant to CPLR 3025 (b) for leave to amend hisanswer (see Rodgers v New York City Tr. Auth., 109 AD3d at 537; Sampson v Contillo, 55 AD3d591, 592 [2008]; see also American Cleaners, Inc. v American Intl. SpecialtyLines Ins. Co., 68 AD3d at 794; Navarette v Alexiades, 50 AD3d 869, 871 [2008];Morris v Queens Long Is. Med. Group, P.C., 49 AD3d at 828).
Furthermore, the Supreme Court improvidently exercised its discretion in, suasponte, modifying the order dated May 22, 2013, by deleting the provision thereofconditionally precluding the defendant from offering any evidence at trial, andsubstituting therefor a provision conditionally precluding the defendant from testifying attrial. The defendant repeatedly failed to comply with discovery orders over an extendedperiod of time, and his attorneys' claim that they were unable to locate him to ensure thathe appeared at the depositions was inadequate to excuse his conduct (see Stone v Zinoukhova, 119AD3d 928, 930 [2014]; Carabello v Luna, 49 AD3d 679, 680 [2008]; Maignan v Nahar, 37 AD3d557, 557 [2007]). In light of the defendant's willful and contumacious conduct, itwas appropriate to preclude the defendant from offering any evidence at trial, and thecourt should not have modified its prior order so as to permit the defendant to presentcertain evidence at trial (cf. Stone v Zinoukhova, 119 AD3d at 930; Carabellov Luna, 49 AD3d at 680; Maignan v Nahar, 37 AD3d at 557).
The plaintiff's remaining contention is not properly before this Court. Rivera, J.P.,Skelos, Roman and Miller, JJ., concur.