On June 5, 2025, Justice Chan of the New York County Commercial Division issued a decision in Baric Commons REO, LLC v. Gross, 2025 NY Slip Op. 32087(U), holding that a motion to amend to add a claim is not barred by the fact that the plaintiff was aware of the claim before it initiated the lawsuit, explaining:
Leave to amend a pleading pursuant to CPLR 3025 (b) shall be freely given, in the absence of prejudice or surprise resulting from the delay. It is well established that delay alone is not sufficient ground for denying leave to amend. The moving party need not establish the merit of her proposed new allegations, but only that the proffered amendment is not palpably insufficient or clearly devoid of merit.
. . .
[P]laintiff has not shown that the timing of the motion results in any meaningful prejudice. While the motion was brought more than a year after the original answer was filed, the relevant events occurred in fall 2023-shortly before the commencement of this action in October 2023. The case remains in discovery, and no depositions have been conducted. The note of issue was filed on April 8, 2025, before the conclusion of all discovery and after the moving defendants filed their motion to amend the answer. Contrary to plaintiffs assertion that allowing the amendment would cause delay and prejudice, delay alone is insufficient to warrant denial of leave to amend.
As to the alleged prejudice to plaintiff, the factual allegations supporting the proposed amendment were known to both parties well before the motion was made. Hence plaintiff cannot claim surprise. In any event, plaintiff fails to identify any specific prejudice in responding to the amended pleading. The proposed amendments expand upon theories already asserted in defendants’ original answer, and courts routinely permit such elaborations when discovery is ongoing and the allegations are not patently devoid of merit.
(Internal quotations and citations omitted).