All the parties in this action are family, related either by blood or marriage. As is sometimes the case, misunderstandings, perceived or actual slights and their inability to resolve the disputes, brought them to this public institution to devise a solution.

In a verified complaint, dated March 4, 2005, plaintiffs, Xiu Ling Su (Wife) and Jian Guang Cao (Husband) allege as follows:

On February 2, 2004 Wife went to the home of Kay Song Ding (Sister-in-Law) to "confront" her about "rumors" that Sister-in-Law was said to have "spread" at a Manhattan hotel/motel where they both work. The "rumors" involved allegations that Wife's son is "slow."

When Wife arrived at Sister-in-Law's apartment, all the defendants were present. A "fierce" argument, involving all the parties, ensued, and, at some point defendant, Zhen Ao Su, (Father) unsuccessfully attempted to put Wife out of the apartment. Wife then went into the kitchen, got a knife and announced that she was going to kill herself. A struggle for the knife followed and during the struggle, defendant Run Kui Cao, (Mother), received a knife wound. [*2]

Over time, there were multiple encounters between and among the parties, individually and collectively, which resulted in some criminal charges, orders of protection, family conferences and, eventually, to this court, where plaintiffs' seek damages for assault, battery, assault, conspiracy to commit battery, malicious prosecution, conspiracy to commit malicious prosecution, emotional upsetment involving phyciatric treatment, recover for medical expenses and loss of consortium.

Defendants answered and denied the allegations. As an affirmative defense, they state that plaintiffs failed to state a cause of action; failed to mitigate damages; estoppel, in that the issues have already been adjudicated, and that the court lacked jurisdiction.

Discovery began with a preliminary conference and proceeded with interrogatories, etc.

In November 2005, plaintiffs moved to amend the complaint, but later withdrew the motion. They have again moved to amend the complaint and defendants oppose the motion. The parties, then stipulated that further discovery would be held in abeyance pending the court's decision on the motion to amend the complaint and defendant's cross motion to dismiss the complaint.

As to the motion to amend, plaintiffs state that some of the amendments are merely cosmetic, e.g. correcting addresses while others add "more facts" to allegations outlined in the initial complaint. Other proposed amendments, say plaintiffs, change the amounts of damages demanded. They add that some of the amendments "provides for" additional causes of action against named defendants. They assert that they have a meritorious claim and conclude that defendants are not prejudiced by the proposed amendments.

In their opposition to plaintiffs' latest amendments to the pleadings, defendants contend that the action is frivolous and is the result of Wife's "schizophrenic" response to the fact that Sister-in-Law got a job at the same hotel/motel where Wife works without the assistance of Wife, who, they claim, believed that Sister-in-Law invaded her (Wife's) "territory".

They contend that after Sister-in-Law's employment, Wife stated a "pattern" of "harassment, threats and bizarre behavior against" defendants. The law suit, they claim, is merely another step in the continued harassment.

Defendants argue that plaintiffs' proposed amendments change the underlying theory of their case by adding allegations about a debt owed to them by defendants. Additionally, defendants say that the proposed amendments add a new cause of action as it related to defendants Wei Hong Su (Brother), Father and Xiu Wen Ng (Sister) and against Mother. The addition of an increased [*3]

ad-damnum clauses also change the theory of the case, say defendants.

They concluded that the motion should be denied because plaintiffs waited for one (1) year after the original complaint was filed to seek the amendment.

Plaintiffs, they add, offered no excuse for the delay and this is especially troubling in light of the fact there has been substantial discovery. This is true particularly in light of the fact that plaintiffs were not unaware of the facts they are now alleging when the action was commenced.

Defendants note that in the proposed amendment to the pleadings, plaintiffs now state that the fierce argument that started the dispute was not about spreading of rumors by Sister-in-Law, but about an alleged debt loaned by plaintiffs to Sister-in-Law and Brother. The loan of $22,500.00 was said to have been made in 1999 in Peru. There is a $10,000.00 balance. The balance is the subject of a dispute about the reason for a claimed payment of that amount in exchange for not commencing any action.

Contrary to plaintiffs' position, defendants claim that the amendments are an unfair surprise and prejudicial to them. They conclude that plaintiffs have failed to show that the amendments have merit.

In addition to their opposition to plaintiff's proposed amendments, defendants have cross moved for dismissal of the action. They allege that prior to the commencement of the action plaintiffs and defendants entered into an agreement whereby they agreed to settle all outstanding disputes, real or imagined , for $10,000.00. The $10,000.00, say defendants, was paid to and accepted by plaintiffs. Defendants assert that the $10,000.00 payment was made to plaintiff on September 4, 2004 and that Husband admitted in the course of settlement talks in court that the payment had been received. This payment, say defendants, was not a payment of any loan, but to settle this dispute.

Plaintiffs oppose defendants' cross motion to dismiss. They say the claim of payment is contradicted by documentary evidence. They add that there are issues of fact involving the alleged $10,000.00 payment which require a trial and that plaintiffs waived any defenses they might have had under CPLR, Section 3211(a) and (e) because these defenses were not raised in a timely manner.

Under New York law, a motion to amend the pleadings or a bill of particulars should be "freely given" in the absence of any prejudice to a party or where the amendment is not plainly lacking in merit; there is no surprise or the amendment does not

cause undue delay. See CPLR, Section 3025(b). Cardy v. Fey, 86 AD2D 978; Stewart v. Fox, 93 AD2d 979; Loomis v. Ciretta Covinio Construction Corp. 54 NY2d 18; Curliano v. Carlise, 296 AD2d 438; [*4]Monello v. Solihile, Megna MD., P.C., 281 AD2d 463. Motions to amend the pleadings are also at the discretion of the court, Edenwald Contracting Co. Inc. V. City of New York, 60 NY2d 957.

Although there may be some questions about the merits of the action and whether laches may apply, the court, in its discretion, grants the motion to amend the pleadings.

Defendants' cross-motion to dismiss is denied without prejudice with leave to renew.

Further, the parties are directed to complete all discovery, including all EBT's, within one hundred and twenty (120) days, which shall begin to run upon the service of a copy of this order along with a Notice of Entry.

Dated: April 13, 2007

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J.S.C.