In a September 22, 2011 decision by Judge Driscoll, the court denied plaintiff’s motion to amend its complain to add a cause of action for actual partial eviction. Plaintiff, a tenant in the defendant LLC’s property located in Hempstead, initiated the action for a breach of lease based on, inter alia, failing to provide heat and elevator service. Plaintiff filed its Amended Verified Complaint, containing six causes of action on March 7, 2008. Discovery ensued, including the deposition of Plaintiff, and Plaintiff filed its Note of Issue with a trial of the action scheduled for November 1, 2011.
On July 8, 2011, after plaintiff moved its business from defendant’s property, Plaintiff filed its motion for leave to amend its complaint. Through the motion, plaintiff sought to replace the sixth cause of action seeking a permanent injunction and requiring specific performance under the lease with a new cause of action for actual partial eviction based on the defendant’s alleged failure to provide sufficient elevator service at the property.
In denying plaintiff’s motion, the court rejected plaintiff’s argument that because the condition of the elevator had been raised in prior motions, the proposed amendment would not cause prejudice to defendant. The court held that defendant would be prejudiced by the amendment given the posture of the case: it was trial-ready; defendant had already conducted discovery, including taking the deposition of plaintiff based on the causes of action in the Amended Verified Complaint; and plaintiff failed to make a reasonable explanation for its delay in seeking the amendment.
Todd Rotwein, D.P.M., P.C., v. Nader Enterprises, LLC, Sup Ct, Nassau County, September 22, 2011, Driscoll, J, Index No. 454/08