Weiss v Bretton Woods Condominium II 2014 NY Slip Op 33905(U) October 2, 2014 Supreme Court, Nassau County Docket Number: Judge: Arthur M.

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1 Weiss v Breon Woods Condominium II 2014 NY Slip Op 33905(U) Ocober 2, 2014 Supreme Cour, Nassau Couny Docke Number: Judge: Arhur M. Diamond Cases posed wih a "30000" idenifier, i.e., 2013 NY Slip Op 30001(U), are republished from various sae and local governmen websies. These include he New York Sae Unified Cour Sysems E-Cours Service, and he Bronx Couny Clerks office. This opinion is uncorreced and no seleced for official publicaion.

2 [* 1] 0 SUPREME COURT- STATE OF NEW YORK Presen: HON. ARTHUR M. DIAMOND Jusice Supreme Cour ~ x ILAN WEISS, TRIAL PART: 10 NASSAU COUNTY -agains- Plainiff, INDEX NO: " BRETTON WOODS CONDOMINIUM II and BOARD OFMANAGERS OF BRETTON WOODS CONDOMINIUM II, Defendan. MOTION SEQ. NO: 5 SUBMIT DATE: 9/8/14. ". --~~----~--~ ~--~-----~-----~--~ x The following papers having been read on his moion: Noice of Moion... 1 Opposiion... 2 Reply Moion by plainiff for an qrde~ pursuan o CPLR 3025(b) for leave o serve an amended complain; pursuan o CPLR 305 and 1003 for leave o add an addiional pary defendan; for leave o "renew" plainiffs prior moion for summary judgmen on he fifh cause of acion is deermined as hereinafer provided. For background informaion.and relevan facs, his Cour respecfully refers o he prior orders daed June 17, 2013 and December 6, In he order daed December 6, 2013, his Cour graned plainiffs moion for summary judgmen wih respec o plainiffs second cause of acion and denied i as o plainiffs fifh and sixh cause of acion. Plainiff now seeks leave o renew he order wih respec o he fifh cause of acion. Plainiff argues ha renewal is proper as new facs have emerged since he prior moion, o wi: plainiff has paid he only amoun found by he Cour o be in dispue. A moion for leave o renew "shall be based on new facs no offered on he prior moion ha would change he prior deerminaion... and shall conain reasonable jusificaion for he failure o presen such facs on he prior moion" (CPLR 2221[e][2][3]; see Aha Sales, Inc. v Creaive Bah Producs, Inc., 110 AD3d 1020 [2d Dep 2013]; Emp.ire Sae Conglomeraes v.,.. " I ~ f 1,.,I :" f,, l

3 [* 2] Mahbur, 105 AD3d 898, 899 [2d Dep 2013]; Wells Fargo Bank, NA. v Russell, 101 AD3d 860 [2d Dep 2012]). Furher, "[w]hile a cour has discreion o enerain renewal based on facs known o he movan a he ime of he original moion, he movan mus se forh a reasonable jusificaion for he failure o submi he informaion in he firs insance" (Jacobson v Adler, 119 AD3d 90b [2d Dep 2014]; Aha Sales, Inc. v Creaive Bah Producs, Inc., supra; Deusche Bank Trus Co. v Ghaness, 100 AD3d 585, [2d Dep 2012]). A moion for leave o reargue "shall be based upon maers of fac or law allegedly overlooked or misapprehended by he cour in deermining he prior moion, bu shall no include any maers of fac no offered on he prior moion" (CPLR 2221[d][2]; Grimm v Bailey, 105 AD3d 703 [2d Dep 2013]; see Maer of American Alernaive Ins. Corp. v Pelszynski, 85 AD3d 1157, 1158 [2d Dep 2011], 1v o,app denied 18 NY3d 803 [2012]). "While he deerminaion o gran leave o reargue a moion lies wihin he sound discreion of he cour, a moion for leave o reargue is no designed o provide an unsuccessful pary wih successive opporuniies o reargue issues previously decided, or o presen argumens differen from hose originally presened" (Ahmed v Pannone, 116 AD3d 802 [2d Dep2014] quoing Maer of AnhonyJ Carer, DDS, P.C. v Carer, 81 AD3d 819, 820 [2d Dep 2011]). Plainiffs moion for leave o renew is, in acualiy, one for leave o reargue., Upon consideraion, his Cour finds ha plainiff is eniled o summary judgmen on he fifh cause of acion declaring ha he is no liable for he legal fees demanded by defendans. This declaraion is consisen wih he prior order daed December 6, In suppor of is moion forleave o amend his complain, plainiff noes he following: a preliminary conference has no been held in his maer; plainiff has responded o all ousanding discovery demands. (4U 12 of Seven Legums Affirmaion); and defendans will no suffer any prejudice by virue of he amendmen. In opposiion, defendan argues ha he insan applicaion o amend does no delineae "wha maerial was omied and wha maerial was added by he proposed second amendmen o he complain" (4U 10 of Helen Benzies Affirmaion in Opposiion) and he "claims alleged in he proposed second amended complain do no sand a good chance of success and, herefore, should no be dignified by being ieraed in his acion" (Id. a,-r 21 ). In response, plainiff urges ha a cursory examinaion of he pleadings "reveals he addiion 2 ~ ~ ; {.,,. i ~ l ~ ~ l I f f ; :f l

4 [* 3] of he newly inerposed sevenh and eighh causes of acion for orious inerference wih conrac, as well as he ninh cause of acion seeking reble damages for wrongful inerference wih plainiffs possession of his propery." (,-r 2 of Mr. Legums Affirmaion). "A pary may amend is pleadings a any ime by permission of he cour, and leave should be freely given (see CPLR 3025[b]), provided he amendmen is no palpably insufficien, does no prejudice or surprise he opposing pary, and is no paenly devoid of meri " (Belus v Souhside Hospial, 106 AD3d 765 [2d Dep 2013], quoing Douglas Elliman, LLC v Bergere, 98 AD3d 642, 643 [2d Dep 2012]; see Golin v Ciy of New York, 90 AD3d 605, [2d Dep 2011]; Lucido vmancuso, 49 AD3d 220, 229 (2d Dep 2008], appeal wihdn1wn, 12 NY3d 813 (2009]). Furher, "he Supreme Cour has broad discreion in deermining wheher o gran leave, and is deerminaion will no be lighly disurbed" (Belus v Souhside Hospial, supra, quoing Douglas Elliman, LLC v Bergere, supra a 643; Tarek Youssef H~ssan Saleh v 5h Ave. Kings Frui & Vegeables Corp., 92 AD3d 749, 750 (2d Dep 2012]). "Mere laeness is no a barrier o he amendmen. I mus be laeness coupled wih significan prejudice o he oher side, he very elemens of he lac hes docrine" (HSBC v Picarelli, 110 AD3d 1031 (2d Dep 2013], quoing Edenwald Conracing Co. v. New York, 60 N.Y.2d 957 a 959 [1983] [inernal quoaion mark~,, omied]; see Aurora Loan Servs., LLC v. Dimura, 104 AD3d 796 [2d Dep 2013]; US. Bank, NA. v. Sharif, 89 AD3d 723, 724 (2d Dep 2011]). Plainiff now seeks leave o amend he complain o asser a cause of acion agains Richard Wagner for inenional inerference wih conracual relaions; a cause of acion agains he Board \ for inenional misrepresenaion, and for unlawful ejecmen. The proposed amended complain does considerably more han asser addiional causes of acion. I assers a claim agains a person sough o be named as an addiional pary o he acion, namely, Richard Wagner (see Konrad v 136 Eas 64 1 h Sree Corporaion, 246 AD2d 324 (l5 1 Dep 1998]). "When a pary seeks no only o amend he pleadings, bu also o asser claims agains persons sough o be joined as addiional paries in he acion (CPLR 1003), he cour may also consider he prejudice o he oher defendans and he exen of he delay in moving o add he new paries and he reasons herefor (Anollino v Wrigh, 2013 WL (N.Y. Sup.); Haughon v i ~ \ Merrill Lynch, Pierce, Fenner & Smih Inc., 305 AD2d 214 (15 1 Dep2013]; Konradv 136 Eas 64 1 h 3 4 I ~ ~ 1 l \ f h I f ;,. ~ l

5 [* 4] Sree Corp., supra). Acceping he allegaions conained in he second amended complain as rue (see Giraldo v Twins Ambulance Serv., Inc., 96 AD3d 903 [2d Dep 2012]), we find ha he proposed amendmen is no palpably insufficien or paenly devoid of meri, and defendans failed o esablish ha hey would be-surprised or prejudiced by his amendmen (Malanga v Chamberlain, 71 AD3d 644 [2d Dep 201 O]; Galin v Ciy of New York, supra). Under he circumsances, plainiffs reques o asser a claim agains Richard Wagner as an addiional pary is graned as defendans have no demonsraed ha hey would suffer any prejudice by his amendmen (cf Haughon v Merrill Lynch, Pierce, Fenner & Smih, Inc. supra). Plainiff is direced o serve a supplemenal summons and a second amended verified complain on Richard Wagner individually. Accordingly, he proposed amended complain s~all be deemed served upon he oher defendans Breon Woods Condominium II and Board of Mangers of Breon,Woods, Condominium II when a copy of his order is served upon heir, aorneys. The paries shall appear for a preliminary conference in DCM on Ocober 20, 2014 a 9:30. This consiues he order and judgmen of his Cour. ENTER DATED: Ocober 2, 2014._/ HON. ARTHUR M. DIAMOND J.S.C. DCT 0 {; 201~ c ci.. E., i 4 I,,,,. f -,, \,,!