This is an action by plaintiff, the Commissioners of the State Insurance Fund, to collect allegedly unpaid insurance premiums owed to it by defendant, Manhattan Concrete LLC for the 2020-2021 policy period. Plaintiff moves under CPLR 3025 (b) to amend its breach-of-contract claim to increase (greatly) the amount sought in unpaid premiums, contending that this change reflects the results of a payroll audit completed last year. The motion is granted.

Absent surprise or prejudice—which defendant does not contend exists here—leave to [*2]amend under CPLR 3025 (b) shall be freely given. Movant "need not establish the merit of [its] proposed new allegations, but only that the proffered amendment is not palpably insufficient or clearly devoid of merit." (Fairpoint Cos., LLC v Vella, 134 AD3d 645, 645 [1st Dept 2015] [internal quotation marks omitted].)

1. Plaintiff's stated basis for the amendment is that defendant's actual payroll, as audited, was much higher than defendant's estimated payroll, pre-audit; and therefore that defendant's insurance premiums, calculated based on the amount of its payroll, were much higher as well. (See NYSCEF No. 46 at 4.) Defendant does not dispute that an increase in payroll would entail an increase in premiums. It argues that the proffered amendment is nonetheless palpably insufficient and devoid of merit.^[FN1] This argument is unpersuasive.

Defendant contends that the size of the increase in the amount claimed is "inflated" and "exorbitant." (see NYSCEF No. 36 at ¶¶ 31, 33.); Defendant does not, however, provide documents or other evidence conclusively showing that its payroll was smaller than plaintiff contends. Instead, defendant asserts that plaintiff "provides no statement as to the now determined payroll amount" that led to the increased amount sought. (See NYSCEF No. 36 at ¶ 31.) But plaintiff has submitted audit documents summarizing the pre-audit estimation, and post-audit determination, of payroll amounts and premiums calculated based on those amounts (see NYSCEF Nos. 22 at 1 and 24 at 3)—along with supporting employee-by-employee and period-by-period charts to support those post-audit payroll amounts (see NYSCEF No. 24 at 11-40). Although defendant contends that plaintiff cannot rely on these "internal summary sheets" because they are "self-serving" and "lack transparency" (NYSCEF No. 36 at ¶ 33), defendant provides no authority for the proposition these documents, or the allegations that they support, are palpably insufficient for purposes of CPLR 3025 (b).

2. Defendant also argues that plaintiff "appears to have failed to account for deductions based on the documentation Manhattan Concrete has provided to date." (Id. at ¶ 32.) In particular, defendant says, plaintiff's counsel had indicated that receipt of "certificates of insurance evidencing wrap-up jobs" would lead to the exclusion of "related payroll from the premium calculations"; yet plaintiff did not exclude wrap-up-job payroll from its calculations despite having received certificates of insurance. (Id.) This argument over-simplifies the record. Plaintiff's counsel had told defendant's counsel in May 2024 that if defendant performed a wrap-up job, "the payroll for that job would be excluded from the premium calculations," so plaintiff was asking defendant to provide "certificates of insurance for the wrap-up job and the certified payroll so we can exclude the payroll." (NYSCEF No. 44 at 1.) In September 2024, plaintiff's counsel told defendant's counsel that plaintiff had received "only three certificates of [*3]insurance . . . and no certified payroll reports" for wrap-up jobs; and that absent those payroll reports (which would show that the workers on those jobs "were covered under another policy"), plaintiff would be "including all payroll in [its] premium calculations." (NYSCEF No. 45.) These statements are not, as defendant contends, inconsistent. And defendant does not cite any case holding that that plaintiff was required to deduct wrap-up-jobs from its premium calculations even absent documentation of wrap-up-job payroll.^[FN2]

3. There is also no merit to defendant's argument that plaintiff's proposed amendment is time-barred because it seeks damages for the 2016-2020 period, outside the applicable statute of limitations. (See NYSCEF No. 36 at 9-10.) Plaintiff's audit documentation reflects (see NYSCEF No. 24 at 3), and plaintiff expressly represents on reply, that it is seeking premiums "solely for the January 7, 2020 to January 21, 2021 policy periods" (see NYSCEF No. 46 at 3-4), which is undisputedly within the limitations period.

4. Defendant contends that because the proposed amendment increased the amount sought by plaintiff on its cause of action for breach of contract, but not the amount sought on plaintiff's account-stated claim, an inconsistency exists "undermin[ing] [p]laintiff's ability to plead an account stated claim, as there is no agreed-upon balance." (NYSCEF No. 36 at ¶ 39.) This court disagrees. True, plaintiff is seeking different amounts on its two causes of action: (i) $364,106.99 in premiums based on the pre-audit estimated payroll (account-stated); and (ii) $1,747,727.11 in premiums based on the post-audit actual payroll (breach of contract). (NYSCEF No. 31 at 3.) This difference, though, does not reflect an inconsistency in the amount that plaintiff is alleging is owed but unpaid, but a distinction in the amounts that defendant has allegedly conceded it owes through having received and retained invoices without objection. (Compare id. at ¶¶ 7-8 [breach of contract], with id. at ¶¶ 14-15 [account stated].) And although plaintiff may not ultimately recover twice on the same amounts owed, plaintiff may assert both of these theories of recovery. There is no merit to defendant's argument (NYSCEF No. 36 at ¶ 40) that the two theories are duplicative. (See Aronson, Mayefsky & Sloan, LLP v Praeger, 228 AD3d 182, 187 [1st Dept 2024].)

Accordingly, it is

ORDERED that plaintiff's CPLR 3025 (b) motion for leave to amend is granted; and it is further

ORDERED that upon service of a copy of this order with notice of its entry, plaintiff's proposed amended complaint in the form appearing at NYSCEF No. 31 shall be deemed its operative pleading in this matter; and it is further

ORDERED that plaintiff serve a copy of this order with notice of its entry on defendant; and it is further

ORDERED that the parties shall appear before this court for a telephonic status conference in this matter on August 20, 2025.