Chemicraft Corp.v. Honeywell Protection Services

161 A.D.2d 250, 554 N.Y.S.2d 899, 1990 N.Y. App. Div. LEXIS 5050

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 8, 1990
• Status: Published

Opinion

Order of the Supreme Court, New York County (Karla Moskowitz, J.), entered on or about August 4, 1989, which denied plaintiffs’ motion for leave to serve, nunc pro tunc, a supplemental summons and amended complaint substituting a new plaintiff, unanimously affirmed, with costs.

Plaintiffs commenced this action in October 1981 to recover for water damage to certain property alleged to have occurred on December 27, 1980. In November 1988, plaintiffs moved to amend the complaint to substitute a different corporation, Perforated Specialties Co., Inc., as the sole plaintiff. Plaintiffs contended that the three companies were family owned with the same officers/shareholders, but submitted no documentation to substantiate this claim. Nor did plaintiffs explain their delay in making the motion. Defendants opposed the motion, arguing that the claims were time barred and they would be substantially prejudiced by the substitution, inasmuch as witnesses had died, employees could no longer be located or identified, and records and other documents were now lost or missing. The court denied the motion, finding that plaintiffs had not established a sufficient basis to amend their pleadings and had not accounted for their delay. We agree.

Leave to amend a pleading should be freely given in the absence of prejudice to the other party (CPLR 3025 [b]; 2001; Bellini v Gersalle Realty Corp., 120 AD2d 345). However, where, as here, the movants were guilty of gross laches and the substitution would substantially prejudice the other parties, leave to amend was properly denied (Manhattan Plaza v Air Tech Indus., 107 AD2d 578; Neggy Travel Serv. v Sabena Belgian World Airlines, 56 AD2d 537). Concur—Murphy, P. J., Ross, Asch and Wallach, JJ.