Monday, May 16, 2016

Second Department Allows Amendment of Complaint to Add Spouse's Derivative Claim Despite Unexplained Delay in Seeking Amendment

In Garafola v. Wing Inc. Specialty Trades, the plaintiff was allegedly injured in an accident at a construction site. He commenced an action against the defendants and two years later sought to add a derivative claim on behalf of his wife. The Supreme Court denied plaintiff's motion, however, because he had failed to explain his two year delay in seeking amendment. On appeal, the Second Department reversed and granted the plaintiff's motion. Substituting its discretion for that of the trial court, the Appellate Division found that the defendants were not prejudiced by the amendment because the same theory of liability applied to both the plaintiff's claim and his spouse's derivative claim, and not much additional discovery was needed. Therefore, the Appellate Division held that mere lateness in seeking the amendment was not a basis to deny the plaintiff's motion.  

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