VOYTICKY v. DUFFY (2005)

In an action for specific performance of an option to purchase a cooperative apartment, the plaintiffs appeal from an order of the Supreme Court, Kings County (Jackson, J.), dated January 6, 2004, which, inter alia, denied that branch of their motion which was for leave to amend the complaint, and granted that branch of the defendants' cross motion which was for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with costs.

 Leave to amend a pleading “shall be freely given” in the absence of surprise or prejudice (CPLR 3025[b] ).  However, the determination whether to grant such leave is within the court's discretion, and the exercise of that discretion will not be lightly disturbed (see Sewkarran v. DeBellis, 11 A.D.3d 445, 782 N.Y.S.2d 758;  Travelers Prop. Cas. v. Powell, 289 A.D.2d 564, 565, 735 N.Y.S.2d 208).   Given the plaintiffs' extended delay in moving for leave to amend their complaint, and the lack of a reasonable excuse for the delay in seeking that relief, the defendants were prejudiced.   Thus, the Supreme Court providently exercised its discretion in denying the plaintiffs' motion for such relief (see Sewkarran v. DeBellis, supra;  Leonardi v. City of New York, 294 A.D.2d 408, 741 N.Y.S.2d 912;  Auwarter v. Malverne Union Free School Dist., 274 A.D.2d 528, 529, 715 N.Y.S.2d 852).

 Moreover, the defendants established their entitlement to judgment as a matter of law by demonstrating that the remaining cause of action for specific performance was rendered academic in light of the sale of the subject premises approximately 15 years ago (see generally Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718).   The plaintiffs failed to raise a triable issue of fact.   Therefore, the Supreme Court properly granted that branch of the defendants' cross motion which was for summary judgment dismissing the complaint.

The plaintiffs' remaining contentions have been rendered academic in light of our determination.