LSIROWKOP LLC v. LLC (2025)

DECISION & ORDER

In an action, inter alia, to reform a contract, the plaintiff appeals from (1) an order of the Supreme Court, Suffolk County (Linda Kevins, J.), dated June 4, 2021, and (2) an order of the same court dated January 18, 2022.  The order dated June 4, 2021, insofar as appealed from, granted the defendant's motion pursuant to CPLR 3211(a) to dismiss the complaint and denied the plaintiff's cross-motion for leave to amend the complaint.  The order dated January 18, 2022, granted the unopposed motion of nonparty Handy Lane 5, LLC, to cancel a notice of pendency filed against the subject property.

ORDERED that the order dated June 4, 2021, is reversed insofar as appealed from, on the law, the plaintiff's cross-motion for leave to amend the complaint is granted, and the defendant's motion pursuant to CPLR 3211(a) to dismiss the complaint is denied;  and it is further,

ORDERED that the appeal from the order dated January 18, 2022, is dismissed, as no appeal lies from an order entered upon the default of the appealing party (see CPLR 5511);  and it is further,

ORDERED that one bill of costs is awarded to the plaintiff, payable by the defendant.

At all relevant times, the plaintiff owned real property located in East Hampton that was adjacent to real property owned by the defendant.  The parties executed an agreement, which was subsequently recorded, apparently agreeing upon a 20–foot scenic easement on the defendant's property for the benefit of the plaintiff.  The plaintiff commenced this action, inter alia, to reform the agreement.  The plaintiff alleged that the agreement did not accurately reflect the width and/or location of the easement that the parties had negotiated, envisioned, and agreed upon, insofar as the parties intended the benefit of the 20 feet to be in addition to, and not inclusive of, other setbacks required under local zoning laws.  The defendant moved pursuant to CPLR 3211(a) to dismiss the complaint, among other things, for failure to state a cause of action, and the plaintiff cross-moved for leave to amend the complaint.  In an order dated June 4, 2021, the Supreme Court, inter alia, granted the defendant's motion and denied the plaintiff's cross-motion.

Thereafter, nonparty Handy Lane 5, LLC (hereinafter Handy Lane), moved to cancel a notice of pendency filed against the property owned by the defendant.  The plaintiff did not oppose the motion.  In an order dated January 18, 2022, the Supreme Court granted the motion.  The plaintiff appeals from both orders.

A motion for leave to amend a pleading may be made “at any time,” and leave shall be freely given absent prejudice or surprise to the opposing party, unless the proposed amendment is palpably insufficient or patently devoid of merit (id. § 3025[b];  see Burger v. Village of Sloatsburg, 216 A.D.3d 730, 187 N.Y.S.3d 333;  Seidler v. Knopf, 186 A.D.3d 886, 888, 130 N.Y.S.3d 40;  R & G Brenner Income Tax Consultants v. Gilmartin, 166 A.D.3d 685, 89 N.Y.S.3d 85).  No evidentiary showing of merit is required under CPLR 3025(b) (see Precious Care Mgt., LLC v. Monsey Care, LLC, 221 A.D.3d 922, 924, 201 N.Y.S.3d 104).  Here, the Supreme Court erred in denying the plaintiff's cross-motion for leave to amend the complaint on the ground that the proposed amended complaint was not properly verified, as there is no requirement that a proposed amended complaint in an action for reformation be verified at the time of a motion for leave to amend (see CPLR 3020, 3025[b]).  In addition, the amendment was not palpably insufficient, did not prejudice or surprise the opposing party, and was not patently devoid of merit (see First Natl. Bank of Long Is. v. Four Keys Realty, LLC, 213 A.D.3d 639, 641, 182 N.Y.S.3d 274 ;  see generally Chimart Assoc. v. Paul, 66 N.Y.2d 570, 573, 498 N.Y.S.2d 344, 489 N.E.2d 231).  Moreover, contrary to the defendant's contention, the plaintiff's allegations of fraud and mistake satisfied the pleading requirements of CPLR 3016(b) by stating in sufficient detail the facts constituting the alleged wrong, as the statements were “sufficient to permit a reasonable inference of the alleged conduct” (Gruber v. Donaldsons, Inc., 201 A.D.3d 887, 889, 162 N.Y.S.3d 393;  see CPLR 3016[b];  J.P. Morgan Mtge. Acquisition Corp. v. South Homes, Inc., 189 A.D.3d 1381, 1383–1384, 138 N.Y.S.3d 566).  Accordingly, the court should have granted the plaintiff's cross-motion for leave to amend the complaint.

When an amended complaint has been served, it supersedes the original complaint and becomes the only complaint in the action (see Burger v. Village of Sloatsburg, 216 A.D.3d 730, 187 N.Y.S.3d 333).  Here, since the defendant elected to apply his motion to dismiss to the proposed amended complaint, we consider the motion as directed against the proposed amended complaint (see Tueme v. Lezama, 217 A.D.3d 715, 716, 190 N.Y.S.3d 463;  Sobel v. Ansanelli, 98 A.D.3d 1020, 1021–1022, 951 N.Y.S.2d 533;  see also Bank of N.Y. v. Karistina Enters., LLC, 209 A.D.3d 820, 822–823, 177 N.Y.S.3d 91).

In considering a motion to dismiss a complaint pursuant to CPLR 3211(a)(7), the court must accept the facts as alleged in the complaint as true, accord the plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory (see Leon v. Martinez, 84 N.Y.2d 83, 88, 614 N.Y.S.2d 972, 638 N.E.2d 511;  Meyer v. North Shore–Long Is. Jewish Health Sys., Inc., 137 A.D.3d 880, 880–881, 27 N.Y.S.3d 188).  “ ‘Where a court considers evidentiary material in determining a motion to dismiss a complaint pursuant to CPLR 3211(a)(7), but does not convert the motion into one for summary judgment, the criterion becomes whether the plaintiff has a cause of action, not whether the plaintiff has stated one, and unless the movant shows that a material fact as claimed by the plaintiff is not a fact at all and no significant dispute exists regarding the alleged fact, the complaint shall not be dismissed’ ” (Lopez v. Lozner & Mastropietro, P.C., 166 A.D.3d 871, 872, 88 N.Y.S.3d 554, quoting Bodden v. Kean, 86 A.D.3d 524, 526, 927 N.Y.S.2d 137;  see Guggenheimer v. Ginzburg, 43 N.Y.2d 268, 275, 401 N.Y.S.2d 182, 372 N.E.2d 17).

Here, taking the allegations in the proposed amended complaint as true and according the plaintiff the benefit of every possible favorable inference, the proposed amended complaint sufficiently stated a cause of action for reformation of the agreement based on mutual mistake and fraud (see Baird v. Baird, 221 A.D.3d 1465, 1466, 200 N.Y.S.3d 604;  106 Spring St. Owner LLC v. Workspace, Inc., 188 A.D.3d 588, 589, 132 N.Y.S.3d 756;  Etzion v. Etzion, 62 A.D.3d 646, 651, 880 N.Y.S.2d 79).  Moreover, the evidentiary material submitted by the defendant in support of his motion failed to utterly refute the factual allegations contained in the proposed amended complaint (see Bank of N.Y. v. Karistina Enters., LLC, 209 A.D.3d at 823, 177 N.Y.S.3d 91;  cf.  Leacock v. Leacock, 132 A.D.3d 818, 819, 18 N.Y.S.3d 648).  The materials outside the record that were referenced in the plaintiff's brief on appeal and at oral argument have not been considered on these appeals.  Accordingly, the defendant's motion pursuant to CPLR 3211(a) to dismiss the complaint should have been denied.

The plaintiff failed to submit papers in opposition to Handy Lane's motion to cancel the notice of pendency.  “ ‘No appeal lies from an order or judgment granted upon the default of the appealing party’ ” (U.S. Bank N.A. v. Fuller–Watson, 197 A.D.3d 764, 766, 150 N.Y.S.3d 579, quoting Rodriguez–Dominguez v. Blackstone Contrs., LLC, 191 A.D.3d 817, 817, 138 N.Y.S.3d 370;  see CPLR 5511).  Accordingly, the appeal from the order dated January 18, 2022, must be dismissed (see Rodriguez–Dominguez v. Blackstone Contrs., LLC, 191 A.D.3d 817, 138 N.Y.S.3d 370).

DILLON, J.P., GENOVESI, CHAMBERS and VENTURA, JJ., concur.