Opinion
Index No. CV-002832-22/BX
03-17-2023
134 Realty Assoc. LLC, Plaintiff v. Jose Posada aka Jose Rivera, Defendants.
For plaintiff: Gutman, Mintz, Baker & Sonnenfeldt, LLP (Hotan Rohparvar, of counsel). For defendant: Jose Posada, self-represented.
Unpublished Opinion
For plaintiff: Gutman, Mintz, Baker & Sonnenfeldt, LLP (Hotan Rohparvar, of counsel).
For defendant: Jose Posada, self-represented.
Jeffrey S. Zellan, J.
Recitation, as required by CPLR 2219(a), of the papers considered in the review of this motion:
Papers Numbered
Order to show Cause/ Notice of Motion and Affidavits /Affirmations annexed 1
Answering Affidavits/ Affirmations 2
Reply Affidavits/ Affirmations
Memoranda of Law
Other
Upon the foregoing cited papers, the Decision/ Order of the Court is as follows:
Defendant's motion for leave to amend the answer in this action pursuant to CCA § 909 is granted. The Court notes that "leave to amend a pleading is freely granted within the court's discretion in the absence of prejudice or surprise," neither of which the Court finds are present here. Mezzacappa Bros., Inc. v. City of New York, 29 A.D.3d 494, 494 (1st Dept. 2006) (citations omitted). That includes where, as here, a defendant seeks leave to interpose counterclaims that arguably could have been interposed with the initial pleading. See, P.A. v. New York & Presbyterian Hosp., 2021 NY Slip Op 32122(U), *36-37 (Sup. Ct., New York Co. 2021) (citing Mezzacappa Bros. and others in granting leave to amend). There is no indication any examinations before trial had been scheduled (let alone conducted) prior to the instant motion, or even that document discovery had commenced, and thus no indication in the record that any discovery effort would be wasted in granted the instant motion. Plaintiff has also had notice of defendant's intention to amend the answer for several months now (further limiting the potential for prejudice or surprise), and the Court also notes that the instant motion is for leave for a first amendment of what was initially a check-box form answer available for self-help purposes from the clerk's office. In effect, the answer was little more than an endorsed pleading, which is especially conducive to amendment to further develop a party's pleadings such that the potential for prejudice or surprise is less with a formal pleading as has been proposed than would be the case in proceeding upon the initial answer in this action. See, CCA § 905. Further, plaintiff having been served with the proposed amended answer as part of the instant motion, the Court will deem the amended answer served and filed and dispense with separate formal service subsequent to this decision and order to allow the parties to prepare for the conference in this action previously scheduled for May 23, 2023 in Part 11.
As to plaintiff's objections to the proposed affirmative defenses and counterclaims, the Court notes that the standard in considering what is, in effect, an effort to preemptively dismiss affirmative defenses, is quite high. See, e.g., Amelius v. Grand Imperial LLC,, 842-845 (collecting cases in considering plaintiff's motion to dismiss affirmative defenses). For purposes of the pleading stage only (without further opining upon the ultimate potential success of any of defendant's amended pleading), plaintiff has not met its "heavy burden of showing that the defense is without merit as a matter of law." Granite State Ins. Co. v. Transatlantic Reins. Co., 132 A.D.3d 479, 481 (1st Dept. 2015). Rather, litigation of this action may continue upon the amended answer, and this decision is without prejudice to plaintiff seeking dismissal following discovery through summary judgment or in litigating the issues raised at trial.
Accordingly, it is:
ORDERED that the instant motion is granted; and it is further
ORDERED that defendant's proposed answer verified on October 21, 2022 is deemed served and filed; and it is further
ORDERED that plaintiff may serve and file a verified reply, if any, to the counterclaims no later than 30 days from the date of entry of this order.
This constitutes the Decision and Order of the Court.