J. CHRISTOPHER FLOWERS, plf-ap, v. 73RD TOWNHOUSE LLC def-res

3638N. J. CHRISTOPHER FLOWERS, plf-ap, v. 73RD TOWNHOUSE LLC def-res — Brem Moldovsky, L.L.C., New York (Brem Moldovsky of counsel), for ap — Goldberg Weprin Frinkel Goldstein LLP, New York (Christopher R. Clarke of counsel), for res — Order, Supreme Court, New York County (Nancy Bannon, J.), entered October 15, 2014, which denied plaintiff's motion for leave to amend the second amended complaint, unanimously modified, on the law and the facts and in the exercise of discretion, to grant the motion except as to beneficiary liability (part of proposed new count XVI), and, as so modified, affirmed, without costs.

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3638N. J. CHRISTOPHER FLOWERS, plf-ap, v. 73RD TOWNHOUSE LLC def-res — Brem Moldovsky, L.L.C., New York (Brem Moldovsky of counsel), for ap — Goldberg Weprin Frinkel Goldstein LLP, New York (Christopher R. Clarke of counsel), for res — Order, Supreme Court, New York County (Nancy Bannon, J.), entered October 15, 2014, which denied plaintiff’s motion for leave to amend the second amended complaint, unanimously modified, on the law and the facts and in the exercise of discretion, to grant the motion except as to beneficiary liability (part of proposed new count XVI), and, as so modified, affirmed, without costs.

Defendants failed to show that they would be prejudiced by the amendment (see CPLR 3025[b]; Cherebin v. Empress Ambulance Serv., Inc., 43 AD3d 364, 365 [1st Dept 2007]). Mere delay is not a sufficient basis on which to deny amendment (Cherebin, 43 AD3d at 365). Defendants’ argument that plaintiff’s new theory is surprising and will require further discovery is unavailing. The amendment is based on evidence learned during discovery (see Cherebin, 43 AD3d at 365). In any event, the need for additional discovery does not justify denying amendment (Jacobson v. McNeil Consumer & Specialty Pharms., 68 AD3d 652, 654 [1st Dept 2009]), especially in light of defendants’ belated discovery responses (see Briarpatch Ltd., L.P. v. Briarpatch Film Corp., 60 AD3d 585 [1st Dept 2009]).

J. CHRISTOPHER FLOWERS, plf-ap, v. 73RD TOWNHOUSE LLC def-res

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