Before the Court for its consideration are the following papers:Notice of Motion and Annexed Exhibits 1Affirmation in Opposition and Annexed Exhibits 2Affirmation in Reply 3DECISION AND ORDER This is a motion for an order granting leave to defendants to amend their answer to include an affirmative defense of accord and satisfaction.Plaintiff originally asserted four causes of action. The first and second causes of action were for property damage to a 2008 Dodge and a 1999 Ford, respectively. Those two causes of action have been withdrawn.The third cause of action seeks recovery for damages to the equipment contained inside the Dodge (a food truck). The fourth cause of action seeks damages for lost business revenue.It is alleged that on April 23, 2016, a vehicle owned and operated by defendants rear ended two parked vehicles owned by plaintiff.After some negotiations, defendant’s insurer offered a check in settlement, in the amount of $35, 571.00, on or about August 26, 2016, which plaintiff accepted.Defendants take the position that said check was in settlement of all of plaintiff’s claims; hence the accord and satisfaction affirmative defense they seek to interpose.Plaintiff takes the position that the documents and communications between the parties clearly show that the check was intended to settle the first two causes of action only, i.e., property damage to the two vehicles.First, plaintiff points to the invoice statement attached to the settlement check indicating a “partial loss”, i.e., that the settlement check represents only a partial settlement of plaintiff’s claimed losses. However, an email from defendant’s claims examiner to plaintiff’s attorney dated August 23, 2016 states that “we have estimated Tadros vehicle and it is a “‘total loss’”. This makes the explanation of the “partial loss” statement made by defendant’s attorney without personal knowledge, i.e., that it “reflect(s) the fact that plaintiff accepted the ACV settlement value $36, 671., less the $1,100. salvage value”, suspect at best.Second, it appears that after the settlement check was issued, the parties were still in negotiations over the damaged equipment. Two emails from defendant’s attorney to plaintiff’s attorney confirm this. The first, dated November 10, 2016 at 2:17 p.m. from defendant’s attorney to plaintiff’s attorney:“It was a pleasure to speak with you yesterday. In order to facilitate a potential settlement, could you please forward me an itemized list of the damaged equipment?”The second, at 5:15 p.m. of the same date:“Thanks. Specifically with regard to the new equipment to outfit the truck — do you have a breakdown of what was destroyed, and what each of those items costs?”Which raises the question — Why would defense counsel be discussing the equipment losses in the truck if she believed there was a full accord and satisfaction approximately 2½ months earlier?Finally, the Court notes that defendant’s verified answer is dated October 24, 2016, two months after the alleged accord and satisfaction resulting from the accepted settlement check, which the Court also notes says nothing about it being in full satisfaction of all of plaintiff’s claims. Under the circumstances, one would expect that this affirmative defense would have been included in the answer. The omission was an “honest oversight”, says defense counsel in her affirmation in support. Rather, such omission constitutes unacceptable law office failure (see, Correa v. Ahn, 205 AD 2d 575 (2d Dept.).Although leave to amend pleadings should be freely given, where a proposed defense clearly lacks merit and would serve no purpose but to complicate discovery, amendment should be denied (Thomas Crimmins Contracting Co, Inc., v. City of New York, 74 NY 2d 166, 170; see also, Mathison v. Zocco, 207 AD 2d 434 (2d Dept.); Hartford Casualty Ins. Co. v. Vengroff Williams and Assoc., 306 AD 2d 435 (2d Dept.)).The Court has also considered the lengthy unexplained delay of nearly 2½ years in seeking leave to amend defendant’s answer. (Greenstone Roberts Advertising, Inc. v. Bernard Hodes Advertising, Inc., 260 AD 2d 601 (2d Dept.)). Under such circumstances, the party seeking such relief must provide an adequate excuse or explanation for the delay (Pogue v. DelRosario, 266 AD 2d 525 (2d Dept.); Tricarico v. B & B Equipment Co., Inc., 249 AD 2d 296 (2d Dept.) which is not satisfied by an explanation of an “honest oversight”.Motion for leave to amend defendant’s answer is denied in all respects.Dated: March 19, 2019
