Z&M Associates Inc, Plaintiff, v. BRP 466 MAIN STREET LLC METRO URBAN COMMUNITY CORP AND BLAKE PARK HOUSING CO LLC (2025)

The following papers numbered 1 to 5 were read on these motions:

Paper Number

Notice of Motion, Affirmation and Exhibit 1

Memorandum of Law 2

Notice of Cross-Motion, Affirmation and Exhibits 3

Memorandum of Law in Opposition  ¹ 4

Affirmation and Exhibit in Reply 5

There are two motions before the Court in what is essentially a commercial landlord-tenant dispute. The first motion, filed by defendant BRP 466 Main Street LLC ("BRP"), seeks to dismiss the complaint because BRP is only mentioned in the complaint in passing. In response to this motion, plaintiff filed its motion seeking to amend the complaint to add allegations against BRP, the successor landlord.

The Court begins with the motion to amend the complaint. It is long settled that "CPLR 3025(b) provides that leave to amend a pleading 'shall be freely given.' Thus, leave should be given where the amendment is neither palpably insufficient nor patently devoid of merit, and the delay in seeking amendment does not prejudice or surprise the opposing party." US Bank, N.A. v. Primiano, 140 AD3d 857, 857, 32 N.Y.S.3d 643, 644 (2d Dept. 2016). In this case, BRP has the burden of establishing prejudice, Coleman v. Worster, 140 AD3d 1002, 1003, 35 N.Y.S.3d 354, 355 (2d Dept. 2016) ("The burden of establishing prejudice is on the party opposing the amendment."), which it has not done.

Indeed, it does not allege that it will suffer any prejudice if the Court allows the amendment; rather, all it does is claim that "such [new] allegations continue to be insufficient to maintain any claims against BRP. None of Plaintiff's purported claims for successor liability, unjust enrichment or breach of contract can be maintained against BRP." BRP gives no indication of why it believes that these claims are insufficient. Accordingly, the motion to amend the complaint is granted, and the amended pleading is deemed served as of the date of receipt of this Decision and Order.

Since the original complaint has been superseded by the amended complaint, the motion to dismiss is denied as moot. See Cobblestone Holdings LLC v. 41 Fifth Owners Corp., 237 AD3d 603, 230 N.Y.S.3d 114 (1st Dept. 2024).

The foregoing constitutes the decision and order of the Court.

Dated: May 27, 2025

White Plains, New York

HON. LINDA S. JAMIESON

Justice of the Supreme Court

FOOTNOTES

1.   There is no need to upload the same document multiple times simply because it concerns more than one motion. The parties are advised against doing it, as it engenders confusion.

Linda S. Jamieson, J.