Defendants SSP, Inc. ("SSP"), SSP Advisors, L.P. ("Advisors") and SSP Partners, L.P. ("Partners") move to amend their answer to assert counterclaims based upon breach of contract and unjust enrichment, to recover advisory fees paid to plaintiff Greycliff Partners ("Greycliff"). SSP is a general partner of Advisors and Partners. The latter two entities are general partners in five Funds (collectively the "Funds") to which Greycliff acts as an advisor.

In this action, Greycliff seeks to recover $420,000 which it contends is due it from the Funds, pursuant to an Advisory Agreement entered into by the parties. Defendants claim that the fees were reduced by the amount in controversy, based upon a set-off provision in the agreement. Greycliff's motion for summary judgment was denied in August 1997, and a discovery schedule was directed by court order in September 1997. Salovaara, a partner of Greycliff, produced documents to defendants on November 21, 1997, and was deposed on January 5, 1998.

According to defendants, discovery revealed that during the time the Funds maintained investments in Granite Broadcasting Corporation ("Granite"), Salovaara received compensation in the form of stock options for his work as a Granite Director. Defendants contend that the receipt of those stock options by Salovaara triggered the set-off provision of the Advisory Agreements and that Greycliff was required to offset the value of the options against the advisory fees owed by the Funds. Greycliff failed to do so. As a result defendants move to amend their answer to recover amounts equalling the value of the stock options.

Courts are given wide discretion in determining whether to grant leave to amend a pleading. In reaching such a determination, a court will consider how long the amending party was aware of the facts upon which the motion is predicated, whether there is a reasonable excuse for the delay, and whether prejudice would result to the non-moving party. Branch v Abraham and Strauss Department Store, 220 AD2d 474 (2d Dept 1995). Here, defendants claim that they first discovered that Salovaara had received stock options as compensation from Granite while deposing him on January 5, 1998. The instant motion was made January 20, 1998. Such a brief period of time does not constitute an inordinate delay.

Plaintiff also argues that defendants knew about the stock options since November 21, 1997, when Salovaara provided disclosure of documents. However, defendants were entitled to take a reasonable period of time to review those documents, and to depose Salovaara based upon them. Defendants assert that a counterclaim was warranted based in part on Salovaara's testimony that he had never informed defendants of the options. At the time of the deposition, and again at a conference with the Court two days later, defense counsel advised plaintiff of their intention to seek leave to amend. Defendants brought this motion on January 20, 1998, only two weeks later. Therefore, there is no basis upon which to find that defendants unduly delayed in seeking leave to amend. [*2]

Plaintiff claims that it would be prejudiced by granting leave to amend because it did not have adequate opportunity to engage in discovery based upon the new counterclaim. This argument is unconvincing. Depositions continued after this motion was filed, and plaintiff could have sought further discovery had it thought such discovery was necessary. Further, while plaintiff contends that it needs discovery regarding parole evidence in order to determine the intent of the parties in drafting the agreement, it is far from clear that such parol evidence would be either necessary or admissible.

The parties' Advisory Agreement provided for a set-off

[i]n the event the Advisor [Greycliff],... the Principals [Salovaara] or any of their respective Affiliates receives any advisory, consulting or other fees from any issuer of Recovery Securities held by the Partnership ... (which fees are hereinafter referred to as "Banking Fees")....

Accordingly, it is hereby

ORDERED that the motion is granted and the defendants are granted leave to amend the answer herein. The amended answer in the proposed form annexed to the moving papers shall be deemed served upon service of a copy of this order with notice of entry thereof.

Dated: April 24, 1998

ENTER:

______________/s/______________

J.S.C.