KITCHENS ASSOCIATES INC v. TRAVELERS INSURANCE COMPANIES (2005)

 Contrary to the contention of plaintiffs, Supreme Court properly denied that part of their motion for leave to amend the complaint to add new causes of action against existing defendants as well as to add new defendants to the action.   The proposed new defendants are not necessary parties inasmuch as the determination of the court will not adversely affect their rights (see Matter of Castaways Motel v. Schuyler, 24 N.Y.2d 120, 125, 299 N.Y.S.2d 148, 247 N.E.2d 124;  see also Musco v. Conte, 22 A.D.2d 121, 125, 254 N.Y.S.2d 589;  cf. Bisbee v. Consolidated Gas Supply Corp., 103 A.D.2d 998, 478 N.Y.S.2d 428).   Thus, the determination whether to grant leave to amend the complaint is governed by CPLR 3025(b) and “is committed to the court's discretion” (Edenwald Contr. Co. v. City of New York, 60 N.Y.2d 957, 959, 471 N.Y.S.2d 55, 459 N.E.2d 164).   Generally, “ ‘[l]eave to amend a pleading should be freely granted in the absence of prejudice to the nonmoving party where the amendment is not patently lacking in merit’ ” (McFarland v. Michel, 2 A.D.3d 1297, 1300, 770 N.Y.S.2d 544, quoting Letterman v. Reddington, 278 A.D.2d 868, 868, 718 N.Y.S.2d 503;  see CPLR 3025[b];  Nizam v. Friol, 294 A.D.2d 901, 902, 741 N.Y.S.2d 805).

Contrary to the contentions of defendant The Travelers Insurance Companies (Travelers Insurance Company) (hereinafter, Travelers), any prejudice in adding the proposed new defendants would not “result [ ] directly from the delay” (Jones v. Lynch, 298 A.D.2d 499, 500, 748 N.Y.S.2d 509;  see Messinger v. Mount Sinai Med. Ctr., 279 A.D.2d 344, 345, 720 N.Y.S.2d 13;  Northbay Constr. Co. v. Bauco Constr. Corp., 275 A.D.2d 310, 312, 711 N.Y.S.2d 510).   Had those defendants, the attorneys for Travelers, been named in the original complaint, the same prejudice would have resulted.   Thus the one-year delay between the filing of the complaint and the instant motion is not the direct cause of any prejudice.

 We further conclude that, with respect to the defendants already named in the complaint, the proposed new causes of action are not time-barred because those causes of action “merely add [ ] ․ new theor[ies] of recovery arising out of transactions already at issue in this litigation” (Presutti v. Suss, 254 A.D.2d 785, 786, 678 N.Y.S.2d 187;  see CPLR 203[f] ).  With respect to the proposed new defendants, we conclude that, contrary to plaintiffs' contention, a court may deny leave to amend a complaint to add a defendant where “it is clear from the original and amended pleadings that the [s]tatute of [l]imitations has expired” (Citibank [N.Y. State] v. Suthers, 68 A.D.2d 790, 795, 418 N.Y.S.2d 679;  see Liverpool v. Arverne Houses, 67 N.Y.2d 878, 879, 501 N.Y.S.2d 802, 492 N.E.2d 1218;  cf. Levykh v. Laura, 274 A.D.2d 418, 711 N.Y.S.2d 449).   The proposed causes of action against the new defendants do not relate back to the filing of the original complaint because the proposed new defendants had no notice of potential claims against them and they are not “united in interest” with the existing defendants (203[c];  see Duffy v. Horton Mem. Hosp., 66 N.Y.2d 473, 477, 497 N.Y.S.2d 890, 488 N.E.2d 820).   With respect to the merits, we conclude that some, but not all, of the limitations periods have expired.

After reviewing each of the proposed new causes of action, however, we conclude that they are “ ‘patently lacking in merit’ ” (McFarland, 2 A.D.3d at 1300, 770 N.Y.S.2d 544, quoting Letterman, 278 A.D.2d at 868, 718 N.Y.S.2d 503) and, therefore, plaintiffs' motion was properly denied in part.

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously affirmed without costs.

MEMORANDUM: