In a December 27, 2011 decision by Justice Warshawsky, the court granted the motion of defendants Worldwide Sourcing Group and Peter Lister to amend their Answer and Counterclaims to clarify certain counterclaims and to add cross-claims against certain defendants. The parties were engaged in the production, distribution, and sale of clothing, for which they entered into various loans with each other. The proposed counterclaim alleged that the plaintiff Galvin was personally liable on a promissory note of Stuart’s in favor of defendant Worldwide Sourcing Group, but the plaintiffs argued in opposition that the absence of Galivn’s signature on the note precluded his and that the claim failed to state a claim upon which relief could be granted. The non-moving defendants opposed the proposed cross-claims arguing that: 1) they would be prejudiced by them because they discussed the defense of the action with the moving defendants; and 2) with respect to the proposed third cross claim, that it was not based upon any new evidence but upon information that was available to the moving defendants at the time of the original answer. The court explained that on a motion to amend, it need not consider the likelihood of success on the merits but only whether the proposed amendment states a claim. The court further noted that the possibility of a subsequent dismissal of a cause of a cause of action, counterclaim or cross-claim is not determinative of a motion to amend. Finding that the proposed counterclaims and cross-claims were not “palpably insufficient” or “patently devoid of merit,” the court granted the defendants’ motion to amend.
Stuart’s LLC v Edelman, Sup Ct, Nassau County, December 27, 2011, Warshawsky, J., Index No. 012560/2009