DIAKOUMAKOS v. GOULD (2021)

Recitation in accordance with CPLR 2219 (a) of the papers considered on the notice of motion, filed on August 3, 2020, under motion sequence number one, by defendant Daniel P. Gould (hereinafter defendant or Gould) for an order pursuant to CPLR 3025 (b) granting leave to amend the answer. Plaintiff Fotini Diakoumakos (hereinafter Diakoumakos) did not submit opposition to the instant motion.

Notice of Motion

Affirmation in Support

Exhibit A-C

Affirmation of Service

BACKGROUND

On February 28, 2020, Diakoumakos commenced the instant action for, inter alia, damages for personal injuries by electronically filing a summons and verified complaint with the Kings County Clerk's office (hereinafter KCCO). Gould joined issue by a verified answer dated April 27, 2020, electronically filed on June 18, 2020.

The verified complaint contained twenty-four allegations of fact in support of two causes of action. The first cause of action is to recover damages for personal injury. The second cause of action is to recover for property damage.

The verified complaint alleged the following salient facts. On April 24, 2019, Gould was driving his 2016 motor vehicle bearing New York State license plate number JHT9956 (hereinafter the adverse vehicle) on the Verrazano Bridge. On the same date and time, Diakoumakos was also operating his 2016 motor vehicle bearing New York State license plate HJE8033 on the Verrazano Bridge. On that date, the two vehicles collided due to Gould's negligent operation of the adverse vehicle. The collision caused Diakoumakos to sustain severe and permanent physical injuries and property damages to his vehicle.

Diakoumakos's original answer dated April 27, 2020 contained denials and asserted three affirmative defenses. It did not address Gould's second cause of action for property damage.

LAW AND APPLICATION

CPLR 3025 (b) provides as follows:

(b) Amendments and supplemental pleadings by leave. A party may amend his or her pleading or supplement it by setting forth additional or subsequent transactions or occurrences, at any time by leave of court or by stipulation of all parties. Leave shall be free given upon such terms as may be just including the granting of costs and continuances. Any motion to amend or supplement pleadings clearly showing the changes or additions to be made to the pleading.

A motion for leave to amend a pleading rests within the sound discretion of the trial court. Such a motion to amend pursuant to CPLR 3025 (b) should be granted provided that the amendment is not palpably insufficient, does not prejudice or surprise the opposing party, and is not patently devoid of merit (Lucido v Mancuso, 49 AD3d 220, 222 [2nd Dept 2008]).

The burden of establishing prejudice or surprise precluding the amendment of the pleading is on the party opposing the amendment (Ditech Fin., LLC v Khan, 189 AD3d 1360 [2nd Dept 2020]). Inasmuch as the plaintiff has not opposed the defendant's motion there is no claim of prejudice or surprise by the amendment.

Gould seeks leave to amend the original verified answer to address the second cause of action for property damage. Under CPLR Rule 3025 (b), any motion to amend or supplement pleadings must be accompanied by the proposed amended or supplemental pleading clearly showing the changes or additions to be made to the pleading. Gould complied by submitting a proposed amended answer and an affirmation explaining the change.

The Court finds that the proposed amended verified answer, on its face, is not palpably insufficient nor patently devoid of merit. Therefore, the defendant's motion for an order granting leave to amend the verified answer pursuant to CPLR 3025 (b) is granted.

CONCLUSION

Defendant Daniel P. Gould's motion for an order pursuant to CPLR 3025 granting leave to amend the verified answer to address the second cause of action in the verified complaint for property damage is granted.

The foregoing constitutes the decision and order of this Court.

Francois A. Rivera, J.