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May 29, 2015
BY ECF & HAND DELIVERY
Justice Jeffrey K. Oing
Supreme Court of the State of New York
County of New York, Part 48
60 Centre Street
New York, NY 10007
Re: Bryan Kelly v. Lettire Construction Corp., 650487/2014
Dear Justice Oing:
Plaintiff Bryan Kelly is seeking leave to amend the Complaint in the above-referenced
litigation.
On February 13, 2014, Plaintiff brought this action for breach of an employment
agreement and for fraud. Defendant moved to dismiss the fraud claim on November 5,
2014, arguing that Plaintiff failed to allege any of the requisite elements of a claim for
fraudulent concealment. On March 16, 2015, after arguments on the motion, this Court
denied Defendant’s motion to dismiss finding that the claim for fraud was adequately
pled.
Although the factual allegations and request for damages contained within the Complaint
were found to be sufficient to state a claim for fraud, Plaintiff seeks to modestly amend
the Complaint to clarify two issues raised by Defendant’s motion: (i) the fraud claim is
predicated on both affirmative misrepresentations as well as omissions; and (ii) the
Complaint does seek damages based on the fraud claim (the proposed Amended
Complaint modifies the addendum clause). A clean copy and a redlined copy of the
proposed Amended Complaint are attached hereto.
On March 21, 2015, Plaintiff sent Defendant clean and redlined copies of the proposed
Amended Complaint and asked Defendant to consent to the amendments, noting that
objecting would likely be a waste of the Court’s resources and everyone’s time as leave
to amend pleadings is freely given under New York law. Defendant refused to consent
without any reason or justification. At the May 26, 2015 conference, I obtained
permission to seek leave to amend via this letter application.
As stated, the law is pretty straightforward. Pursuant to CPLR 3025(b), leave to amend
pleadings “shall be freely given.” The Court of Appeals has carried out this statute’s
purpose noting that leave to amend shall be freely given “absent prejudice or surprise
resulting directly from the delay.” McCaskey, Davies and Associates, Inc. v. New York
City Health & Hospitals Corp., 59 N.Y.2d 755, 757, 450 N.E.2d 240, 463 N.Y.S.2d 434
(1983). The type of prejudice necessary to warrant denial of a motion to amend requires
that the opposing party has been prevented from taking some action in support of its
position or hindered in the preparation of its case. Tri-Tec Design, Inc. v. Zatek Corp.,
123 A.D.3d 420, 998 N.Y.S.2d 43 (1st Dept. 2014) (granting leave to amend pleading).
See also McGhee v. Odell, 96 A.D.3d 449, 450, 946 N.Y.S.2d 134 (1st Dept. 2012)
(noting that a party opposing leave must overcome a heavy presumption of validity in
favor of allowing amendment).
There will be no prejudice to Defendant if the amendments are allowed, as the
amendments do not seek to add a new cause of action or a new party. See Thomas v.
Laustrup, 34 A.D.3d 1115, 1116, 825 N.Y.S.2d 555 (3d Dept. 2006). The elaborated
allegations serve only to clarify the existing fraud claim. See Barnes Coy Architects,
P.C. v. Shamoon, 53 A.D.3d 466, 467, 863 N.Y.S.2d 216 (2d Dept. 2008) (reversing
denial of leave to amend complaint to assert additional allegations and increase ad
damnum clause with respect to existing cause of action). Defendant cannot legitimately
claim surprise or prejudice because the proposed amendments are premised upon the
same transactions, facts and occurrences contained within the original Complaint.
In addition, the proposed amendments cannot be said to be untimely as this request is
being made shortly after the Court’s decision on Defendant’s motion to dismiss and
before the completion of discovery. It cannot be argued that the amendments would
prejudice Defendant. See Zeide v. National Casualty Co., 187 A.D.2d 576, 577, 589
N.Y.S.2d 998 (2d Dept. 1992) (finding that “since discovery had not been completed” at
the time of the motion to amend, opposing party “failed to demonstrate prejudice as a
result of the amendment”). In any event, the proposed amendments, because they are
basically an elaboration on the facts alleged in the original Complaint, would not change
the scope or content of any discovery in this case.
In a similar vein, the addition to the ad damnum clause should be allowed as “[i]t is by
now well settled that ‘in the absence of prejudice to the defendant, a motion to amend the
ad damnum clause, whether made before or after the trial, should generally be granted.’”
Thomas, 34 A.D.3d at 1116 (quoting Loomis v. Civetta Corinno Construction Corp., 54
N.Y.2d 18, 23, 429 N.E.2d 90, 444 N.Y.S.2d 571 (1981)).
For the reasons set forth above, Plaintiff requests that the Court grant leave to amend.
Respectfully,
/s/ Michael Stolper
Michael Stolper
cc: Neil Connelly, Esq. (counsel for Defendant)
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May 29, 2015 BY ECF & HAND DELIVERY Justice Jeffrey K. Oing Supreme Court of the State of New York County of New York, Part 48 60 Centre Street New York, NY 10007 Re: Bryan Kelly v. Lettire Construction Corp., 650487/2014 Dear Justice Oing: Plaintiff Bryan Kelly is seeking leave to amend the Complaint in the above-referenced litigation. On February 13, 2014, Plaintiff brought this action for breach of an employment agreement and for fraud. Defendant moved to dismiss the fraud claim on November 5, 2014, arguing that Plaintiff failed to allege any of the requisite elements of a claim for fraudulent concealment. On March 16, 2015, after arguments on the motion, this Court denied Defendant’s motion to dismiss finding that the claim for fraud was adequately pled. Although the factual allegations and request for damages contained within the Complaint were found to be sufficient to state a claim for fraud, Plaintiff seeks to modestly amend the Complaint to clarify two issues raised by Defendant’s motion: (i) the fraud claim is predicated on both affirmative misrepresentations as well as omissions; and (ii) the Complaint does seek damages based on the fraud claim (the proposed Amended Complaint modifies the addendum clause). A clean copy and a redlined copy of the proposed Amended Complaint are attached hereto. On March 21, 2015, Plaintiff sent Defendant clean and redlined copies of the proposed Amended Complaint and asked Defendant to consent to the amendments, noting that objecting would likely be a waste of the Court’s resources and everyone’s time as leave to amend pleadings is freely given under New York law. Defendant refused to consent without any reason or justification. At the May 26, 2015 conference, I obtained permission to seek leave to amend via this letter application. As stated, the law is pretty straightforward. Pursuant to CPLR 3025(b), leave to amend pleadings “shall be freely given.” The Court of Appeals has carried out this statute’s purpose noting that leave to amend shall be freely given “absent prejudice or surprise resulting directly from the delay.” McCaskey, Davies and Associates, Inc. v. New York City Health & Hospitals Corp., 59 N.Y.2d 755, 757, 450 N.E.2d 240, 463 N.Y.S.2d 434 (1983). The type of prejudice necessary to warrant denial of a motion to amend requires that the opposing party has been prevented from taking some action in support of its position or hindered in the preparation of its case. Tri-Tec Design, Inc. v. Zatek Corp., 123 A.D.3d 420, 998 N.Y.S.2d 43 (1st Dept. 2014) (granting leave to amend pleading). See also McGhee v. Odell, 96 A.D.3d 449, 450, 946 N.Y.S.2d 134 (1st Dept. 2012) (noting that a party opposing leave must overcome a heavy presumption of validity in favor of allowing amendment). There will be no prejudice to Defendant if the amendments are allowed, as the amendments do not seek to add a new cause of action or a new party. See Thomas v. Laustrup, 34 A.D.3d 1115, 1116, 825 N.Y.S.2d 555 (3d Dept. 2006). The elaborated allegations serve only to clarify the existing fraud claim. See Barnes Coy Architects, P.C. v. Shamoon, 53 A.D.3d 466, 467, 863 N.Y.S.2d 216 (2d Dept. 2008) (reversing denial of leave to amend complaint to assert additional allegations and increase ad damnum clause with respect to existing cause of action). Defendant cannot legitimately claim surprise or prejudice because the proposed amendments are premised upon the same transactions, facts and occurrences contained within the original Complaint. In addition, the proposed amendments cannot be said to be untimely as this request is being made shortly after the Court’s decision on Defendant’s motion to dismiss and before the completion of discovery. It cannot be argued that the amendments would prejudice Defendant. See Zeide v. National Casualty Co., 187 A.D.2d 576, 577, 589 N.Y.S.2d 998 (2d Dept. 1992) (finding that “since discovery had not been completed” at the time of the motion to amend, opposing party “failed to demonstrate prejudice as a result of the amendment”). In any event, the proposed amendments, because they are basically an elaboration on the facts alleged in the original Complaint, would not change the scope or content of any discovery in this case. In a similar vein, the addition to the ad damnum clause should be allowed as “[i]t is by now well settled that ‘in the absence of prejudice to the defendant, a motion to amend the ad damnum clause, whether made before or after the trial, should generally be granted.’” Thomas, 34 A.D.3d at 1116 (quoting Loomis v. Civetta Corinno Construction Corp., 54 N.Y.2d 18, 23, 429 N.E.2d 90, 444 N.Y.S.2d 571 (1981)). For the reasons set forth above, Plaintiff requests that the Court grant leave to amend. Respectfully, /s/ Michael Stolper Michael Stolper cc: Neil Connelly, Esq. (counsel for Defendant)