Schulte Roth & Zabel, LLP v. Kassover

28 A.D.3d 404, 812 N.Y.S.2d 874

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 27, 2006
• Status: Published

Opinion

Order, Supreme Court, New York County (Paviola A. Soto, J.), entered June 22, 2005, which denied defendant’s motion to amend his answer to assert a counterclaim for malpractice in his capacity as executor, unanimously affirmed, without costs.

Defendant’s contention that he raised an issue of fact with respect to whether plaintiff represented him in his capacity as executor, as well as individually as had been alleged in the original answer, ignores the governing procedure. Although the standard for amending a pleading is less exacting than in moving for summary judgment, there must still be an affidavit of merit or an offer of evidence similar to that supporting a summary judgment motion, which defendant failed to provide (see Morgan v Prospect Park Assoc. Holdings, 251 AD2d 306 [1998]; Nab-Tern Constructors v City of New York, 123 AD2d 571, 572 [1986]). The documents appropriately introduced through the attorney’s affirmation (see Lewis v Safety Disposal Sys. of Pa., Inc., 12 AD3d 324, 325 [2004]) purported merely to negate the existence of surprise or prejudice. Defendant’s attempt to remedy the deficiency by submitting his affidavit for the first time in reply was improper (see Ritt v Lenox Hill Hosp., 182 AD2d 560, 562 [1992]). In any event, we note that defendant’s submissions failed to raise an issue of fact as to whether plaintiff had represented the estate as well. Concur—Andrias, J.P., Saxe, Williams, Sweeny and McGuire, JJ.