Recitation in accordance with CPLR 2219 (a) of the papers considered on the notice of motion filed on February 27, 2025, under motion sequence number three, by Rachmael Green (hereinafter the plaintiff) for an order pursuant to CPLR 3025 (b) and CLPR 1003, granting plaintiff leave to amend the verified complaint and supplemental summons to add Sterling Dumont LLC as a new party defendant. The motion is opposed by 1562 Dumont Ave LLC (hereinafter the defendant).

Exhibit A^[FN1]

Exhibit A^[FN2]

Exhibits A-D^[FN3]

Exhibits A-B

On December 15, 2023, the plaintiff commenced the instant action against the defendant by filing an order to show cause and summons and complaint with the Kings County Clerk's office (KCCO).

On February 7, 2024, the defendant filed a notice of appearance. On July 1, 2024, the defendant interposed and filed an answer and counterclaim with the KCCO.

The complaint alleged twenty-three allegations of fact in support of three denominated causes of action, namely, an action to quiet title, an action for a prescriptive easement and an action for an injunction.

The complaint alleges the following salient facts, among others. Plaintiff has been in possession of certain real property in the borough of Brooklyn, county of Kings, city and state of New York, known designated as Lot 5, Block 4472 (hereinafter the subject property). Since December 5, 2023, the defendant has been the owner of the subject property. Plaintiff has improved the subject property, via its use and modification for use as a storage facility for equipment and vehicles for plaintiff's demolition business.

Since January 2009, the plaintiff has exercised exclusive control over the subject property. Upon information and belief, from at least January 2009, the plaintiff's possession, use, and control of the subject property was actual, open, hostile, notorious, exclusive, continuous and under claim of right. Accordingly, by operation of law, plaintiff became the owner of the subject property no later than sometime in January of 2019, well before defendant's attempt to assert ownership and control of the subject property.

Plaintiff seeks relief declaring the plaintiff to be the owner in fee title absolute of the subject property, in accordance with the principles of adverse possession, and extinguishing any claim by the defendant to the subject property. If the court does not find plaintiff has adversely possessed the subject property, plaintiff asks the court to find an easement by prescription due to plaintiff's uninterrupted use of the of the subject property since January of 2009. The plaintiff claims entitlement to a judgment preliminarily and permanently enjoining the defendant from interfering in any manner with their use, enjoyment, and title to the subject property.

CPLR 1003 provides in pertinent part that "[p]arties may be added at any stage of the [*2]action by leave of court or by stipulation of all parties who have appeared" (CPLR 1003).

"Leave to amend a pleading should be freely given, provided the amendment is not palpably insufficient, does not prejudice or surprise the opposing party, and is not patently devoid of merit" (Tenenbaum v Ziv, 231 AD3d 1181, 1182 [2d Dept 2024], citing Ortega v Bisogno & Meyerson, 2 AD3d 607, 609 [2d Dept 2003], and citing CPLR 3025 [b], and citing Bhatara v Kolaj, 222 AD3d 926, 929 [2d Dept 2023]).

"The burden of demonstrating prejudice or surprise, or that a proposed amendment is palpably insufficient or patently devoid of merit, falls upon the party opposing the motion" (Wells Fargo Bank, N.A. v. Spatafore, 183 AD3d 853, 853 [2d Dept 2020]). CPLR 3025 (b) provides in pertinent part that "[a]ny motion to amend or supplement pleadings shall be accompanied by the proposed amended or supplemental pleading clearly showing the changes or additions to be made to the pleading" (CPLR 3025; Lennon v 56th & Park [NY] Owner, LLC, 199 AD3d 64, 72 [2d Dept 2021]; Scialdone v Stepping Stones Assoc., L.P., 148 AD3d 950, 952 [2d Dept 2017]).

On February 27, 2025, the plaintiff filed the instant motion seeking an order pursuant to CPLR 3025 (b) and CLPR 1003, granting plaintiff leave to amend the verified complaint and to supplement the summons by adding Sterling Dumont LLC as a new party defendant. The plaintiff annexed as exhibit A the proposed amended summons and amended complaint under NYSCEF doc. no. 34.

By interim order dated October 16, 2025, the court gave the plaintiff leave to file a redlined proposed amended summons and amended complaint by November 13, 2025. The defendant was given until December 14, 2025, to file opposition to the motion, and the return date was set for December 18, 2025.

On November 12, 2025, plaintiff filed the proposed amended summons and amended complaint under NYSCEF doc. no. 50. The proposed amended complaint filed under NYSCEF doc. no. 50 was different from the proposed amended complaint filed under NYSCEF doc. no. 34. It was also incomplete, and it was not redlined as the Court directed.

The proposed amended complaint filed under NYSCEF doc. no. 50 referred to the following four annexed exhibits A-D, under NYSCEF doc. nos. 51-54. Allegation of fact number six referred to a deed of the subject property between Canyon & Cei LLC and Sterling which was annexed as Exhibit A, under NYSCEF doc. no. 51. Allegation of fact number seven referred to Sterling as a mortgagee and to a mortgage on the subject property which were annexed as Exhibits B and C, under NYSCEF doc. nos. 52 and 53. Allegation of fact number twenty-three referred to annexed photos which were annexed as Exhibit D, under NYSCEF doc. no. 54. The proposed amended complaint, however, did not include annexed exhibits A, B, C or D.

In opposition to the motion, the defendant pointed out that the proposed amended complaint filed under NYSCEF doc. no. 50 was different from the proposed amended complaint filed under NYSCEF doc. no. 34 and that it was not redlined as the Court directed. The defendant also contended that the proposed amended complaint was palpably insufficient and patently devoid of merit.

CPLR 2214 (c) provides, in pertinent part that "[e]ach party shall furnish to the court all papers served by that party. The moving party shall furnish at the hearing all other papers not already in the possession of the court necessary to the consideration of the questions involved . . . Only papers served in accordance with the provisions of this rule shall be read in support of, or [*3]in opposition to, the motion, unless the court for good cause shall otherwise direct" (CPLR 2214 [c]).

Here, despite two chances to submit a proposed amended summons and complaint clearly showing the changes or additions to be made to the pleading, the plaintiff failed to do so. Contrary to the requirements of CPLR 2214 (c), the plaintiff provided an incomplete proposed complaint. Consequently, the plaintiff's motion to amend the summons and amended complaint is denied.

The motion by plaintiff Rachmael Green for an order granting leave to amend the verified complaint and supplemental summons to add Sterling Dumont LLC as a new party defendant is denied without prejudice.

The Court imposes cost of $250.00 payable by the plaintiff to the defendant's counsel within thirty days of notice of entry of the instant decision and order.

The foregoing constitutes the decision and order of this Court.