In a December 7, 2011 decision by Justice Driscoll, the court granted a motion to amend and denied a motion for summary judgment based on the original complaint finding that the amendment rendered the original complaint a nullity, and therefore moot. After the completion of a number of depositions, plaintiffs sought to amend their complaint to add additional causes of action and additional parties. Plaintiffs based their amendment on information disclosed during discovery, including party and non-party depositions. Defendants opposed the amendment arguing that the proposed amendment did not state any valid causes of action and that plaintiffs were aware of certain of their new claims when they commenced the action and should not be allowed to amend their pleadings at such late date. Defendants also moved for summary judgment dismissing all of the claims brought in the original complaint. The court granted plaintiffs’ motion to amend finding that the proposed amendment is not palpably insufficient or patently devoid of merit. The court further found that, because the complaint was deemed amended, plaintiffs’ originally complaint was a nullity and defendants’ motion for summary judgment against the original complaint was moot.
Fusco and Fasulo v. Direct Access Management, LLC et al., Sup Ct, Nassau County, December 7, 2011, Driscoll, J, Index No. 4450/09.