The following papers read on this motion:Notice of Motion and Affidavits XAffirmation in Opposition XReply Affirmation XRelief Requested Motion by the plaintiff, presumably pursuant to CPLR 3211, for an order dismissing the defendants’ affirmative defenses (Motion Sequence No. 5). Motion in limine by the plaintiff for an order precluding the defendants from introducing evidence at trial of other complaints or lawsuits initiated by the plaintiff (Motion Sequence No. 6). Unopposed motion by the plaintiff for an order, pursuant to CPLR 3025(b), granting plaintiff leave his complaint (Motion Sequence No. 8). The defendants submit opposition to plaintiff’s motion to dismiss and motion in limine. The plaintiff submits respective reply affirmations.BackgroundThe plaintiff initiated the instant action to recover pursuant to an indemnification/hold harmless agreement regarding the commission for a property sale. Plaintiff had entered into an agreement with non-party DJ Real Estate whereby plaintiff agreed to pay three percent (3 percent) of the purchase price of the subject property upon its sale. Plaintiff thereafter entered into a contract with the defendants whereby a similar commission was to be paid, and whereby the defendants agreed to hold plaintiff harmless in the event that DJ Real Estate made a claim for commission up to $60,000.00. Ultimately, DJ Real Estate sued plaintiff and was awarded a judgment in the amount of $106,047.95.Applicable LawThe standard of review on a motion to dismiss an affirmative defense pursuant to CPLR 3211(b) is akin to that used under CPLR 3211(a)(7), i.e., whether there is any legal or factual basis for the assertion of the defense (In re Liquidation of Ideal Mut. Ins. Co., 140 A.D.2d 62).CPLR 3025(b) allows amendments to correct a “mistake, omission, irregularity or defect.” While permission to amend a complaint should be freely given in the proper exercise of discretion, a motion for such relief should be made promptly after discovery or awareness of facts upon which such amendment is predicated (CPLR 3025[b]; see also De Carlo v. Economy Baler Div. of American Hoist & Derrick Co., 57 A.D.2d 1002). In exercising its discretion, the court should consider how long the amending party was aware of the facts upon which the motion was predicated, whether a reasonable excuse for the delay was offered, and whether prejudice resulted therefrom (Sidor v. Zuhoski, 257 A.D.2d 564).DiscussionAs a preliminary matter, the instant motion in limine (Motion Sequence No. 6), which is to preclude the defendants from the admission of other complaints or lawsuits involving the plaintiff, is more properly before the Trial Judge.With regard to plaintiff’s motion to dismiss the defendants’ affirmative defenses (Motion Sequence No. 5), the plaintiff has demonstrated that the defendants’ first through sixth affirmative defenses have no merit as a matter of law (CPLR 3211[b]), and that the defendants’ seventh and eighth affirmative defenses are more appropriately raised as general defenses at the time of trial. Specifically, plaintiff established, inter alia, that the purported admissions in a related action were not verified by the plaintiff, that the relevant statutes of limitations began to run in June of 2016, and that the plaintiff took efforts to mitigate his damages.In opposition, the defendants failed to demonstrate any factual basis for their claims regarding res judicata, collateral estoppel, waiver, accord and satisfaction, laches, or unclean hands. Further, rather than articulate the purported legal theories of their affirmative defenses, defendants focus instead on plaintiff’s claims regarding piercing the corporate veil, though none of the defendants’ affirmative defenses address such claims. Additionally, the defendants’ improper request for relief in opposition has not been considered, given the absence of a cross motion.Regarding his motion to amend (Motion Sequence No. 8), while plaintiff claims the delay was minimal and would not subject the defendants to any prejudice, plaintiff failed to articulate when he discovered or became aware of the facts upon which his proposed amendment is predicated, and as such, plaintiff has failed to offer a reasonable excuse for the delay (see De Carlo, supra). Of note, plaintiff initiated the instant action in November of 2016, and leave to serve an amended complaint was previously granted by order dated June 18, 2018. Plaintiff now seeks to bolster his claim to pierce the corporate veil, seemingly in response to the defendants’ opposition papers to the other motions pending before this court, as no other new information has been offered as a basis for the amendment. As such, the plaintiff has made an insufficient showing for leave to amend (see Sidor, supra).ConclusionIn light of the foregoing, it is herebyORDERED that the plaintiff’s motion to dismiss the defendants’ affirmative defenses (Motion Sequence No. 5) is granted, and it is furtherORDERED that the plaintiff’s motion to amend his complaint (Motion Sequence No. 8) is denied, and it is furtherORDERED that this court respectfully refers the instant motion in limine (Motion Sequence No. 6) to the Trial Judge as it is made on the eve of trial, returnable the date that the instant matter is intended to be tried.Dated: June 5, 2019
