Papers ^[FN1] Numbered

Upon the foregoing documents, plaintiff moves for leave to amend the summons and complaint pursuant to CPLR 305 and 3025.

On December 22, 2023, plaintiff commenced the present action seeking $49,999.00 in damages for a claim of breach of lease for the rental period from March 1, 2018, through and including October 31, 2019 (see plaintiff's motion to amend exhibit 4, verified complaint).

On January 11, 2024, defendant filed her pro se answer, which included, inter alia, a counterclaim that plaintiff was seeking damages for a period when defendant had paid rent (see defendant's aff in opp exhibit A, pro se answer).

At the first and second pre-trial conferences held on February 14 and May 20, 2024, defendant claims that she told plaintiff's per diem attorney that she had all the rent receipts for the months alleged in the complaint. Defendant was advised by said attorney(s) that they'd let their client know (see defendant affidavit at ¶ 17). Plaintiff claims that there were "several adjournments on Defendant(s) request to seek counsel" but does not specify which conference dates (see plaintiff's reply aff at ¶ 9).

At the third pre-trial conference, Anna Park, Esq. appeared on a limited-scope basis for defendant and similarly advised plaintiff's attorney that defendant paid the rent during the months that were alleged in the complaint. Ms. Park also gave plaintiff's attorney the proof in the form of rent receipts (defendant's aff in opp at ¶ 32).

At the next pre-trial conference on January 6, 2025, defendant appeared without counsel and was advised there were no updates on plaintiff's position and plaintiff would proceed with the case. The Court scheduled a bench trial for February 10, 2025 (see plaintiff's motion to amend exhibit 5, eCourts appearance information doc).

On January 7, 2025, defendant retained counsel and Ms. Park filed a notice of appearance (defendant's aff in opp at ¶ 14). Counsel for both sides spoke on the phone on January 14, 2025 regarding the rent alleged in the complaint.

Plaintiff's counsel's affirmation in support of the instant motion states:

After your affirmant discussed this matter with Defendant(s)' counsel on January 14, 2025, it was pointed out that the Summons and Complaint sought rent arrears for "the months of March 1, 2018 through and including October 31, 2019." Since the "rent" for the months between September 2018 and August 2019 were paid as per the terms of the August 2018 Stipulation, Plaintiff should have correctly and more simply plead its cause of action by reference to the broken August 2018 Stipulation and the liquidated damages acknowledged therein.

Three days before the scheduled trial, on February 7, 2025, plaintiff filed the instant motion for leave to amend the summons and complaint to "correctly" plead the cause of action as — not one for failure to pay rent during a certain time, but — as breach of a stipulation instead.

As set forth in plaintiff's moving papers, plaintiff and defendant were parties in a [*2]nonpayment proceeding in Housing Court in 2018 (index no LT-64980-18/KI). On August 23, 2018, the parties signed a two-attorney stipulation, requiring the defendant to make monthly rent payments from September 10, 2018, to August 10, 2019 (see plaintiff's motion to amend exhibit 1, stipulation at ¶ 4). The stipulation also required defendant to vacate the premises by August 31, 2019 as a condition for the landlord waiving arrears in the amount of $49,483.85 (id.).

Plaintiff's motion papers include a party affidavit attesting to defendant's failure to vacate on August 31, 2019. Plaintiff now seeks to "simplify[] matters" by suing for a lower amount, $49,483.85 per the stipulation instead of the $49,999.00 originally sought in the complaint. Plaintiff further claims that there cannot be any prejudice because defendant can file a responsive answer and that defendant admitted to such amounts in the stipulation. Finally, plaintiff also claims that the amended summons and complaint may be properly deemed interposed at the time the action commenced pursuant to CPLR 203 (f).

It is undisputed that defendant paid all rent as required by the 2018 stipulation from September 2018 to August 2019. It is also undisputed that defendant did not vacate by August 31, 2019.

However, as set forth in defendant's affidavit in opposition, which included defendant's description of the parties' landlord-tenant history since 2005,^[FN2] the Marshal came to the premises with two agents on August 31, 2019 and did not force her to leave. More specifically, defendant stated: "They had visible guns, and my [son with special needs] started having a mental breakdown. The Marshal witnesses [sic] how distressed he was, and told me that I should go ask the Court for more time to move because my child was not in the condition for the move. The Marshal refused to force us to vacate on that day" (defendant's affidavit at ¶ 11).

When defendant sought an order to show cause to obtain more time to move a few days later, it was denied because of the terms in the 2018 Stipulation (id. at ¶ 12). "Upon receiving the decision, I moved out as fast as I could despite the medical conditions of my family. Before the move could happen, my son had to be hospitalized because my son's doctor advised such action considering the his [sic] mental breakdown on August 31 moving day" (id. at ¶ 13). Defendant surrendered the premises on October 8, 2019 (id.).

Defendant had not heard from plaintiff about any arrears after she vacated until almost 5 [*3]years later, until she received the summons and complaint in this action in January 2024 (see id. at ¶¶ 14-16).

It is well established that parties may amend their pleadings "'at any time' by leave of the court" (CPLR 3025 [b]; Flowers v Mombrun, 212 AD3d 713, 714 [2d Dept 2023]). A motion for leave to amend a pleading "shall be freely granted" and such motion "is committed to the broad discretion of the court" (Yong Soon Oh v Hua Jin, 124 AD3d 639, 640 [2d Dept 2015]).

"Where the proposed amended pleading is palpably insufficient or patently devoid of merit, or where the delay in seeking the amendment would cause prejudice or surprise, the motion for leave to amend should be denied" (Lucido v Mancuso, 49 AD3d 220, 229 [2d Dept 2008]). A party is prejudiced if it "has been hindered in the preparation of his case or has been prevented from taking some measure in support of his position" (Loomis v Civetta Corinno Const. Corp., 54 NY2d 18, 23 [1981]).

"In exercising its discretion, the court should consider how long the party seeking the amendment was aware of the facts upon which the motion was predicated, whether a reasonable excuse for the delay was offered, and whether prejudice resulted therefrom" (American Cleaners, Inc. v American Intl. Specialty Lines Ins. Co., 68 AD3d 792, 794 [2d Dept 2009], quoting Cohen v Ho, 38 AD3d 705, 706 [2d Dept 2007] [internal quotation marks omitted]).

Further, where "leave is sought on the eve of trial, judicial discretion should be exercised sparingly" (Morris v Queens Long Is. Med. Group, P.C., 49 AD3d 827, 828 [2d Dept 2008]; see Comsewogue Union Free School Dist. v Allied-Trent Roofing Sys., Inc., 15 AD3d 523, 525 [2d Dept 2005]; Glickman v Beth Israel Med. Ctr. Kings Highway Div., 309 AD2d 846 [2d Dept 2003]).

Here, the motion was made three days before the scheduled trial, which is considerably late. Plaintiff had the first opportunity to "correct" its cause of action and file the instant motion after defendant alleged in her January 11, 2024 answer that she had paid rent for the period of time alleged in the complaint (see defendant's aff in opp exhibit A, pro se answer).

Plaintiff then had several subsequent opportunities throughout the pre-trial conferences and prior to the Court scheduling the initial trial date on February 10, 2025 to file the instant motion, as defendant, acting pro se and through counsel, consistently and repeatedly stated that defendant had paid the rent during the period of time sought in the complaint.

Plaintiff concededly only realized its "mistake" after speaking with defense counsel on January 14, 2025 a few weeks before trial. The Court cannot discern any "reasonable and acceptable excuse for the delay" in moving based on these circumstances where the same fact had been "pointed out" to plaintiff repeatedly for over a year (see Ross v Ross, 143 AD2d 429, 429-30 [2d Dept 1988]).

The amendment would also cause prejudice to defendant, as the proposed amended complaint seeks to replace the original cause of action for breach of lease and failure to pay rent with an entirely different cause of action for breach of a settlement agreement and the recovery of "liquidated damages"^[FN3] (see plaintiff's motion to amend exhibit 7, amended verified [*4]complaint). There was no notice that plaintiff would be seeking to recover on such a claim throughout the entire year that the parties had engaged in discovery and during pre-trial conferences. Accordingly, the motion should be denied (see Morris, 49 AD3d at 828-829 ["granting the plaintiff's application would have substantially prejudiced the respondents as the amendment, which was based upon facts that the plaintiff had known since the inception of this action, sought to add new theories of liability that were not readily discernible from the allegations in the complaint and the original bill of particulars"]; Glickman, 309 AD2d at 846 ["substantial prejudice to the defendants is apparent in that the amendment seeks to add new theories of recovery which were not readily discernible from the allegations in the complaint and the original bill of particulars"]; cf. A & M Wallboard, Inc. v Mar. Towers Assoc., 125 AD2d 354, 355 [2d Dept 1986]).

Accordingly, it is hereby ORDERED that plaintiff's motion for leave to amend the summons and complaint is denied; and it is further

ORDERED that, as this matter was previously scheduled for trial in Part 11, and since both parties are now represented and the matter has been placed on the general calendar, a notice of trial must be filed to be placed on the trial calendar; either party shall file the notice of trial within 30 days after service of a copy of this order with notice of entry.

This constitutes the decision and order of the Court.