Opinion
Index No. 161439/2019 Motion Seq. No. 021
10-17-2023
BRIAN STROUT, Plaintiff, v. CF 88 LLC, SM E 88 LLC, THE CHETRIT GROUP LLC, STELLAR MANAGEMENT LLC, JUMEAUX MANAGEMENT LLC, Defendants.
Unpublished Opinion
Motion Date 06/20/2023
PRESENT: HON. SABRINA KRAUS, Justice
DECISION + ORDER ON MOTION
HON. SABRINA KRAUS, JUSTICE
Plaintiff moves to amend the verified amended complaint to, inter alia, add new elements for fraud and either remove or renumber causes of action, pursuant to CPLR 3025. Defendants oppose and plaintiff replies.
BACKGROUND
Plaintiff, currently self-represented, is a tenant of apartment 12C at 160 East 88th Street, New York, NY 10128 (subject premises). Plaintiff filed a summons and complaint on November 22, 2019 (NYSCEF Doc. No. (Doc.) 1) and an amended complaint was filed on January 8, 2021 (Doc. 30). The amended complaint asserts nine causes of action. Plaintiff seeks, inter alia: a declaratory judgment that the subject premises is rent stabilized; a permanent injunction preventing defendants from commencing eviction actions against him except in accordance with the Rent Stabilization Law (RSL) and the Rent Stabilization Code (RSC); and a declaratory judgment that the base date is June 20, 2014, for determining the legal rent under the default formula by the New York State Division of Housing and Community Renewal (Doc. 30). On July 9, 2021, defendants filed their answer to the verified amended complaint (Doc. 38).
Plaintiff has filed several motions. On December 22, 2021, plaintiff moved to amend the amended verified complaint by, inter alia, adding three new defendants, additional facts, and any additional facts that may become known (Mot. Seq. 004; Doc. 73; Doc. 75). On January 10, 2022, defendants filed their opposition (Doc. 90). By decision and order dated April 8, 2022, this court denied that motion as it failed to comply with the requirements of CPLR 3025(b) since the motion did not include a proposed amended pleading (Doc. 144).
On March 7, 2022, plaintiff moved again to amend the amended complaint by, inter alia, adding two new defendants and four additional causes of action (Mot. Seq. 008; Doc. 100; Doc 102; Doc. 103). On April 5, 2022, defendants filed their opposition (Doc. 139). By decision and order dated May 3, 2022, this court denied that motion as it failed to comply with CPLR 3025(b) since the motion included a redlined version of the plaintiffs first amended complaint but was virtually impossible to decipher (Doc. 154). Next, adding the proposed individuals as defendants was without merit since Section 609 of the Limited Liability Company Law provides that managers and members of LLCs are not liable for the debts or obligations of the LLC solely by reason of their status (Doc. 154). Lastly, the motion did not sufficiently identify the proposed causes of action that plaintiff sought to add (Doc. 154).
On May 11, 2022, plaintiff moved again to amend the amended complaint by, inter alia, adding three new defendants and an additional cause of action (Mot. Seq. 010; Doc. 165; Doc. 166; Doc. 168; Doc. 169). On May 24, 2023, defendants filed their opposition (Doc. 183). By decision and order dated June 2, 2022, this court denied that motion since the relief sought was nearly identical to the relief requested in motion sequence number 8 (Doc. 206). '
On June 6, 2022, plaintiff moved again to amend the amended complaint by, inter alia, renumbering causes of action and adding additional information (Mot. Seq. 013; Doc. 207; Doc. 208; Doc. 211). On June 9, 2022, defendants filed a cross-motion for summary judgment and dismissal of the entire action (Doc. 212; Doc. 213). By decision and order dated August 11, 2022, this court denied plaintiffs and defendants' motions (Doc. 258). Plaintiffs motion was not substantially different from his prior motions that were denied and thus the motion was denied for the same reasons (Doc. 258). The defendants' motion was denied because they failed to meet their burden on entitlement to judgment as a matter of law (Doc. 258). Defendants' moving papers were insufficient as they primarily consisted of an attorney affirmation and a brief affidavit from Jeffrey Davis, which was insufficient to establish entitlement to judgment as a matter of law (Doc. 258).
THE INSTANT MOTION
On June 20, 2023, plaintiff moved again to amend the amended complaint to, inter alia, add new elements for fraud; add new causes of action pertaining to the base date of the rent overcharge and willful overcharge for treble damages; and either remove or renumber other causes of action, pursuant to CPLR 3025 (Mot. Seq. 021; Doc. 458; Doc. 459; Doc. 460; Doc. 461). Plaintiff attached a proposed second amended complaint (Doc. 460; Doc. 461). Plaintiff asserts, inter alia, that leave should be granted because (1) no new defendants are being added and thus there is no prejudice or surprise towards the defendants; (2) plaintiff did not have access to the facts he now alleges in the proposed second amended complaint at the time he filed the amended complaint; and (3) the amendment addresses new requirements for pleading fraud based on new case law (Doc. 459 at 3-4). Defendants' opposition notes, inter alia, that (1) plaintiff s four previous motions to amend the amended complaint were denied; (2) the instant motion is not substantially different than the prior motions for leave to amend that were denied; (3) the case law plaintiff points to does not change pleading requirements for alleging a fraudulent scheme to deregulate but rather clarified prior decisions and plaintiffs asserted reliance on such case law as a reason for amending the amended complaint is without merit; and (4) plaintiff fails to identify what facts were allegedly discovered after the filing of the amended complaint or how they were discovered (Doc. 525 at 2-3). Plaintiff submits his reply (Doc. 558).
Pursuant to status conference orders dated March 31, 2023, June 27, 2023, and September 7, 2023, the parties are reminded that pre-motion conferences are required before filing motions (Doc. 409; Doc. 464; Doc. 601). It does not appear that plaintiff sought leave for this motion.
Leave to amend pleadings is freely given absent prejudice or surprise resulting from delay (see CPLR 3025(b); Eighth Ave. Garage Corp, v H.K.L. Realty Corp., 60 A.D.3d 404, 405 [1st Dept 2009]). "Prejudice requires some indication that the defendant has been hindered in the preparation of his case or has been prevented from taking some measure in support of his position" (Kocourek v Booz Allen Hamilton Inc., 85 A.D.3d 502, 504 [1st Dept 2011] [internal quotation marks and citations omitted]). A party opposing a motion for leave to amend must overcome a heavy presumption of validity in favor of allowing the amendment (McGhee v Odell, 96 A.D.3d 449, 450 [1st Dept 2012]). It is within the court's discretion to allow such an amendment and the court's decision will not be overturned without a showing that the facts offered for the amendment do not support the new claims (Eighth Ave. Garage Corp., 60 A.D.3d at 405). To conserve judicial resources, a review of the underlying merits of the proposed causes of action is warranted (id. at 405). Leave to amend a pleading is properly denied where a court concludes that the application to amend clearly lacks merit (id. at 405).
Plaintiff s motion for leave to amend is denied. The current motion is not substantially different than previous motions to amend, except that the current motion does not seek to add new defendants. Plaintiff submitted a proposed second amended complaint (Doc. 460; Doc. 461). Contrary to plaintiffs assertion, the proposed second amended complaint appears to be little more than a rewrite of the amended complaint. Plaintiff fails to demonstrate that the proposed second amended complaint contains new substantive facts or properly asserts new causes of action. The court's prior orders denied the previous motions to amend the amended complaint, finding them to be without merit (Doc. 153; Doc. 206; Doc. 258). Accordingly, the court again denies this latest motion to amend for the same reasons.
WHEREFORE, it is hereby.
ORDERED that plaintiffs motion for leave to amend the amended complaint is denied; and it is further
ORDERED that, within 20 days from entry of this order, defendants shall serve a copy of this order with notice of entry upon the Clerk of the General Clerk's Office (60 Centre Street, Room 119); and it is further
ORDERED that such service upon the Clerk shall be made in accordance with the procedures set forth in the Protocol on Courthouse and County Clerk Procedures for Electronically Filed Cases (accessible at the "E-Filing" page on the court's website at the address www.nycourts.gov/supctmanh).
This constitutes the decision and order of the court.