Before the court is an amended motion filed by Neal Yarm for leave to amend his petition for construction of decedent's will pursuant to SCPA 1420.

The will of decedent Selma Yarm (the "decedent") was admitted to probate on September 17, 2012. Her two sons, David Yarm and Neal Yarm ("David" and "Neal"), are the beneficiaries of the estate. David is currently the sole executor of the estate.

Article Third of decedent's will provides:

"THIRD: If at the time of my death I am the owner of the real property known as and located at 3432 Ocean Avenue, Oceanside, New York, I give devise and bequeath said premises to my children, NEAL YARM and DAVID YARM, in equal shares, provided however, my son, NEAL YARM shall have the right to reside in said premises for as long as he wishes. While my son, NEAL YARM, resides in the premises he shall be responsible for all the carrying charges including but not limited to taxes, insurance, maintenance and minor capital improvements."

On April 19, 2013, Neal filed a petition for construction pursuant to SCPA 1420 and for additional relief. Neal then filed an amended petition on June 11, 2013, seeking construction of [*2]Article Third of decedent's will, and a determination that Article Third grants a life estate in 3432 Ocean Avenue, Oceanside, New York ("Ocean Avenue") to Neal, as evidenced by the obligations placed upon Neal to pay the carrying charges on the property. Neal asked the court to further determine that as the life tenant of Ocean Avenue, he can exclude others from possession and may lease the property to others, subject to his life estate, and may collect rents without any obligation to David as a one-half fee owner.

On September 23, 2013, Neal moved for leave to amend his petition to additionally request a construction of decedent's will "as to whether it was the Decedent's intent to disrupt Petitioner's life estate in the real property at 3461 Ocean Avenue, Oceanside, New York, by allowing respondent, David Yarm, to remove half the household contents located therein during such life estate . . . ." The discrete question before the court is whether to allow Neal to amend his petition to include this additional request for relief.

Counsel for David filed an amended supplemental affirmation opposing the amended motion, arguing that leave to amend the petition should be denied as the proposed amendment lacks merit. In support, counsel cites the examination of Richard T. Kerins, the attorney-draftsperson of decedent's probated will. Mr. Kerins testified that he had clearly explained to his client, Selma Yarm, the ramifications of giving Neal a life estate, and that she had responded that she absolutely did not want to give Neal a life estate, but rather, the ability to stay in the house as long as he paid the bills. In essence, David is saying that since there is no merit to Neal's assertion that he has a life estate in Ocean Avenue, there is no merit to Neal's request that the court determine that the life estate includes the household contents.

The opposition concludes by asking the court to deny Neal's motion to amend and direct Neal to permit David, as sole executor and as a one-half owner of Ocean Avenue, to access the entire premises to inventory its contents and effectuate a distribution.

Neal's counsel filed a reply affirmation on January 9, 2013, arguing that the deposition of the draftsperson of the will is not relevant to a motion to amend a pleading. Instead, it is argued, the sole issue before the court is whether Neal can amend his petition to add an additional construction issue. Counsel maintains that a motion to amend is liberally granted unless it is shown that it would cause significant prejudice to the opposing party, which prejudice does not exist in this case. Further, counsel asserts that David's final request for relief, that he be given access to Ocean Avenue in his capacity as executor to inventory the contents and make a distribution, is improper, as any request for affirmative relief must be made by motion and not in opposition to Neal's unrelated motion.

The court has broad discretion whether to grant or deny leave to amend under CPLR3025 (b). "Leave to amend a pleading pursuant to CPLR 3025 (b) should be freely granted unless the proposed amendment is palpably insufficient or patently devoid of merit, or unless prejudice or surprise to the opposing party results directly from the delay in seeking leave to amend" (Seidman v Industrial Recyling Props., Inc., 83 AD3d 1040 [2d Dept 2011] see also Matter of Pinto, 2012 NY Misc Lexis 5391, 2012 NY Slip Op 52200 [U] [Sur Ct, [*3]Richmond County 2012]). The court will consider: (1) how long the amending party knew the facts raised in the amendment and whether a reasonable excuse is offered for the delay (Matter of Goggins, 231 AD2d 634 [2d Dept 1996]); (2) whether the amendment plainly lacks merit (Matter of Carvel, NYLJ, Apr. 16, 2002 at 33, col 1 [Sur Ct, Westchester County] Seaman Corp v Binghamton Sav. Bank, 243 AD2d 1027 [3d Dept 1997] and (3) whether the amendment would cause prejudice to the other party (Matter of Carvel, NYLJ, Apr. 16, 2002, at 33, col. 1 [Sur Ct, Westchester County] Seaman Corp v Binghamton Sav. Bank, 243 AD2d 1027 [3d Dept 1997] Matter of Goggins, 231 AD2d 634 [2d Dept 1996] Wyso v City of New York, 91 AD2d 661 [2d Dept 1982] Matter of Sabha, 65 AD2d 917 [4th Dept 1978]). Typically, denial of a motion for leave to amend might occur after a lengthy delay following the filing of the original petition or just before commencement of a trial (Gallo v Aiello, 139 AD2d 490 [2d Dept 1988]).

David's opposition to Neal's motion for leave to amend is based upon the deposition testimony of the attorney who drafted decedent's will, which indicated that the decedent did not intend to give Neal a life estate in Ocean Avenue. However, whether the decedent intended to create a life estate for Neal's benefit is not a question to be decided in the context of this motion. Moreover, leave to amend is generally exercised freely (Matter of Bender, 18 Misc 3d 1109A [Sur Ct, Nassau County 2007]).

Leave to amend the petition is granted.

The court denies David's request for access to Ocean Avenue to inventory the contents and make a distribution, without prejudice to renew.

This is the decision and order of the court and no further order need be submitted.

Dated: March 13, 2014

EDWARD W. McCARTY III

Judge of the

Surrogate's Court