On March 21, 2022, Justice Masley of the New York County Commercial Division issued a decision in Highcap Group LLC v. Jam Equities, LLC, 2022 NY Slip Op. 30933(U), holding that the absence of an affidavit of merit was not fatal to a motion to amend, explaining:
Failure to Supply an Affidavit from Someone with Personal Knowledge Defendants contend that plaintiffs’ motion to amend should be denied because this motion relies solely on CORE’s counsel’s affirmation. The PAC is based on facts exposed during discovery, a process in which counsel actively participated. Counsel’s affirmation is sufficient to support the motion to amend as the facts detailed in her affidavit were based on her personal knowledge. Nevertheless, a plaintiff’s failure to submit an affidavit of merit in support of its motion to amend is not fatal to the motion. On a motion for leave to amend a pleading, the moving party need not support its allegations with evidence or an affidavit of merit, and for that reason, defendants’ arguments fail.
Although defendants cite to numerous First Department cases requiring an affidavit of merits by a person having personal knowledge of the facts, the law has evolved over the years. In St. Nicholas, 193 AD3d 488, the First Department cited a
(Internal quotations and citations omitted) (emphasis added).
variety of more recent cases which dispensed of a required affidavit of merit. In particular, in Hickey v Steven E. Kaufman, P.C., the First Department noted that given the Legislature’s 2005 amendment of CPLR 3211(e), plaintiff was not required to support his motion to amend the complaint with an affidavit of merit. This change makes sense given that leave to amend a complaint should be denied if the proposed complaint could not survive a motion to dismiss. A proposed amended complaint that would be subject to dismissal as a matter of law is, by definition, palpably insufficient or clearly devoid of merit and thus should not be permitted under CPLR 3025.