The opinion
De Sa Earp v Reeder
2024 NY Slip Op 32430(U)
July 15, 2024
Supreme Court, New York County
Docket Number: Index No. 162018/2019
Judge: Judy H. Kim
Cases posted with a "30000" identifier, i.e., 2013 NY Slip
Op 30001(U), are republished from various New York
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York State Unified Court System's eCourts Service.
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publication.
FILED: NEW YORK COUNTY CLERK 07/15/2024 04:42 PM INDEX NO. 162018/2019
NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 07/15/2024
SUPREME COURT OF THE STATE OF NEW YORK
NEW YORK COUNTY
PRESENT: HON. JUDY H. KIM PART 04
Justice
---------------------------------------------------------------------------------X INDEX NO. 162018/2019
PEDRO ENRIQUE DE SA EARP,
MOTION DATE 03/06/2024
Plaintiff,
MOTION SEQ. NO. 001
-v-
ADAM REEDER, DEANNIE REEDER, DECISION + ORDER ON
MOTION
Defendants.
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The following e-filed documents, listed by NYSCEF document number (Motion 001) 13, 14, 15, 16, 17,
18, 19, 20, 21, 22, 23
were read on this motion to AMEND CAPTION/PLEADINGS .
Upon the foregoing documents, plaintiff’s motion to amend his complaint is granted.
Plaintiff commenced this action on December 12, 2019, alleging that he is the owner of
condominium unit 17PHA in the building located at 404 Park Avenue South, New York, New
York, also known as the Huys Condominium (the “Condominium”) and rented this apartment to
defendants pursuant to a Lease of Condominium Unit dated July 18, 2015 (the “Lease”) (NYSCEF
Doc. No. 1 [Compl. at ¶¶1-6]). Plaintiff further alleged that defendants have breached the Lease
by failing to pay rent required from August 15, 2019 through December 14, 2019 and refusing to
grant access to plaintiff, the Condominium, and the Condominium’s Board of Managers (the
“Board”) to perform work in the apartment (Id. at ¶¶38-40]).
Defendants interposed an answer on January 22, 2020, alleging that plaintiff failed to
correct dangerous conditions in the apartment including mold, water and gas leaks, and defective
flooring and asserted counterclaims for breach of the warranty of habitability as well as actual and
constructive eviction (NYSCEF Doc. No. 5 [Answer at ¶¶25-40]).
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FILED: NEW YORK COUNTY CLERK 07/15/2024 04:42 PM INDEX NO. 162018/2019
NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 07/15/2024
On March 6, 2024, plaintiff filed the instant motion seeking leave to amend his complaint
to assert claim for indemnification and contribution against the Board for any judgment recovered
by defendants on their counterclaims and, as pertinent here, extending the period in which
defendants had failed to pay rent from August 15, 2019 through August 14, 2020 (as opposed to
August 15, 2019 through December 14, 2019) (NYSCEF Doc. No. 15 [Proposed Amended
Complaint]).
In opposition, defendants argue that plaintiff motion must be denied because plaintiff has
not presented a reasonable excuse for his lengthy delay in making the instant motion. Defendants
also assert that they would be prejudiced by the amendment because they understood plaintiff’s
failure to reply to their counterclaims as a concession as to the validity of those counterclaims,
whereas the amended complaint indicates that plaintiff is seeking rental arrears for the period in
which defendants contend they were constructively evicted.
DISCUSSION
“Leave to amend pleadings under CPLR 3025(b) should be freely given and denied only if
there is prejudice or surprise resulting directly from the delay or if the proposed amendment is
palpably improper or insufficient as a matter of law” (McGhee v Odell, 96 AD3d 449, 450 [1st
Dept 2012] [internal citations and quotations omitted]). The amendment sought is neither palpably
improper nor insufficient as a matter of law and plaintiff’s motion is therefore granted.
Contrary to defendant’s claim, “[m]ere lateness [in moving for leave to amend] is not a
barrier to the amendment” (Abdelnabi v New York City Tr. Auth., 273 AD2d 114, 115 [1st Dept
2000] [internal citations and quotations omitted]). Rather, “[i]t must be lateness coupled with
significant prejudice to the other side” (Id.) and defendant has not established that they would be
prejudiced by the proposed amendment. The amended complaint’s extension of the period in
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FILED: NEW YORK COUNTY CLERK 07/15/2024 04:42 PM INDEX NO. 162018/2019
NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 07/15/2024
which plaintiff seeks unpaid rent is based upon the same facts as the breach of contract cause of
action in the original complaint and “[p]rejudice ... is not found in the mere exposure of the
defendant to greater liability. Instead, there must be some indication that the defendant has been
hindered in the preparation of his case or has been prevented from taking some measure in support
of his position” (See Abdelnabi v New York City Tr. Auth., 273 AD2d 114, 114-15 [1st Dept
2000]), neither of which has been established here.
The Court does, however, credit defendants’ concern that permitting plaintiff to amend his
complaint at this juncture “would, in effect, relieve plaintiff from any default in replying to the …
counterclaim[s] in [their] answer” (Marshall Bros., Inc. v Economic Paving Co., Inc., 175 AD2d
611 [4th Dept 1991]). Accordingly, plaintiff’s motion is granted subject to the condition that,
should defendants reassert these counterclaims in their answer to the amended complaint, plaintiff
shall not be permitted to reply to same unless he moves for, and is granted, leave to serve a late
reply to these counterclaims (Id.).
Accordingly, it is
ORDERED that plaintiff's motion for leave to amend the complaint is granted; and it is
further
ORDERED that the plaintiff shall serve a supplemental summons and amended complaint
upon Adam Reeder, Deannie Reeder, and the Board of Managers of the Huys Condominium, in
accordance with the CPLR, within twenty days from the date of this order; and it is further
ORDERED that counsel for plaintiff shall serve a copy of this decision and order with
notice of entry upon defendants, the County Clerk (60 Centre Street, Room 141B), and the Clerk
of the General Clerk's Office (60 Centre Street, Room 119); and it is further
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Motion No. 001
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FILED: NEW YORK COUNTY CLERK 07/15/2024 04:42 PM INDEX NO. 162018/2019
NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 07/15/2024
ORDERED that upon plaintiff’s filing of proof of service of the supplemental summonses
and amended complaint on defendants with the Clerk of the Court, the Clerk is directed to mark
the court’s records to reflect the amended caption, as follows:
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
------------------------------------------------------------------------------------X
PEDRO ENRIQUE DE SA EARP,
Plaintiff, Index No. 162018/2019
-against-
ADAM REEDER, DEANNIE REEDER, and
THE BOARD OF MANAGERS OF THE HUYS CONDOMINIUM,
Defendants.
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and it is further
ORDERED that such service upon the Clerk shall be made in accordance with the
procedures set forth in the Protocol on Courthouse and County Clerk Procedures for
Electronically Filed Cases (accessible at the “E-Filing” page on the court's website at the address
(www.nycourts.gov/supctmanh); and it is further
ORDERED that the parties are to appear for a status conference in Part 4 (80 Centre Street,
room 308) on October 4, 2024 at 10:00 am.
This constitutes the decision and order of the court.
7/15/2024
DATE HON. JUDY H. KIM, J.S.C.
CHECK ONE: CASE DISPOSED X NON-FINAL DISPOSITION
X GRANTED DENIED GRANTED IN PART OTHER
APPLICATION: SETTLE ORDER SUBMIT ORDER
CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE
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Motion No. 001
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