Opinion
2011-11-10
PANASIA ESTATE, INC., Plaintiff–Appellant,v.Daniel R. BROCHE, etc., Defendant–Respondent,Property 51 LLC, et al., Defendants.
Robinson Brog Leinwand Greene Genovese & Gluck, P.C., New York (Robert M. Milner of counsel), for appellant.Andrew Weltchek, New York, for respondents.
Order, Supreme Court, New York County (Joan M. Kenney, J.), entered January 28, 2011, which denied plaintiff's motion for leave to serve a third amended complaint pursuant to CPLR 3025(b), unanimously affirmed, without costs.
Although motions for leave to amend may be granted on the eve of trial ( see CPLR 3025[c]; Reyes v. City of New York, 63 A.D.3d 615, 616, 882 N.Y.S.2d 64 [2009], lv. denied 13 N.Y.3d 710, 2009 WL 3428042 [2009] ), the motion court properly denied plaintiff's motion because defendants would be unduly prejudiced by the proposed amendment, which seeks to add a new theory of liability ( see Spence v. Bear Stearns & Co., 264 A.D.2d 601, 694 N.Y.S.2d 654 [1999] ). The record reveals that discovery, which had been tailored to the theories of liability set forth in the second amended complaint, was nearly complete and the filing date of the note of issue was imminent ( see Chichilnisky v. Trustees of Columbia Univ. in City of N.Y., 49 A.D.3d 388, 852 N.Y.S.2d 777 [2008] ). Plaintiff sought this amendment 18 months after the action was commenced, after it had amended its complaint twice, and after it and defendants had submitted motions for summary judgment that Supreme Court had resolved ( see Heller v. Louis Provenzano, Inc., 303 A.D.2d 20, 756 N.Y.S.2d 26 [2003] ).
Furthermore, the proposed amendment, wherein plaintiff seeks specific performance of an oral modification of the parties' contract, is lacking in merit ( see e.g. Eighth Ave. Garage Corp. v. H.K.L. Realty Corp., 60 A.D.3d 404, 405, 875 N.Y.S.2d 8 [2009], lv. dismissed 12 N.Y.3d 880, 883 N.Y.S.2d 174, 910 N.E.2d 1003 [2009] ). Plaintiff's conduct, as alleged in the proposed third amended complaint, does not unequivocally refer to the purported oral modification, and thus does not fall within the partial performance exception to General Obligations Law § 5–703(4) ( see Messner Vetere Berger McNamee Schmetterer Euro RSCG v. Aegis Group, 93 N.Y.2d 229, 235, 689 N.Y.S.2d 674, 711 N.E.2d 953 [1999] ).
TOM, J.P., ANDRIAS, ACOSTA, FREEDMAN, RICHTER, JJ., concur.