AFLALO 338 v. SASSOUNI TORBATI (2023)

The following e-filed documents, listed by NYSCEF document number (Motion 009) 249, 250, 251, 252, 253, 254, 255, 261, 264 were read on this motion to/for AMEND CAPTION/PLEADINGS.

Upon the foregoing documents, the plaintiffs' motion (Mot. Seq. No. 009) to amend the Third Amended Complaint (TAC; NYSCEF Doc. No. 211) must be denied because the proposed amended complaint is palpably insufficient as a matter of law (Davis & Davis P.C. v Morson, 286 AD2d 584, 584 [1st Dept 2001]).

The plaintiffs have been given ample opportunity to file an OSC seeking leave to amend the TAC:

• At a conference on September 9, 2022, the Court granted the plaintiffs leave to file a motion to amend the TAC by filing an OSC on or before September 22, 2022 (NYSCEF Doc. No. 244). The plaintiffs failed to file an OSC by that deadline.

• At a conference on November 16, 2022, the Court granted both parties leave to file motions by OSC on or before December 31, 2022 (NYSCEF Doc. No. 245). Once again, the plaintiffs failed to file an OSC to amend the TAC.

• On December 27, 2022, pursuant to CPLR 3216(b), the defendant filed a written demand to the plaintiffs to file Note of Issue within 90 days (NYSCEF Doc. No. 259)

• The plaintiffs did not file Note of Issue within the 90 days but did file an OSC to amend the TAC on March 3, 2023 (NYSCEF Doc. No. 260).

However, that motion is defective. The plaintiffs have added Bita Sassouni and David Galanter back into the caption as individual defendants despite the fact that the case was already dismissed against both of those individuals and the plaintiffs have not offered any argument for readmitting them as defendants (NYSCEF Doc. No. 209). The plaintiffs have also named “the Estate of Albert Aflalo” as a plaintiff instead of naming a personal representative of the Estate of Albert Aflalo. Because the proposed amended complaint is palpably insufficient as a matter of law, the motion to amend the complaint must be denied (Davis & Davis P.C., 286 AD2d at 584).

It is hereby ORDERED that the motion to amend the TAC is denied.

Andrew Borrok, J.