On February 24, 2022, the First Department issued a decision in Endothelix, Inc. v. Vasomedical, Inc., 2022 NY Slip Op. 01240, upholding the denial of a motion for leave to amend the complaint to conform to the evidence because the delay in making that motion prejudiced the defendant, explaining:
The court providently exercised its discretion in denying plaintiff’s motion for leave to amend the complaint to conform to the evidence, in view of plaintiff’s unjustified extensive delay in seeking leave to amend, and the substantial prejudice that would result to defendant if an amendment were granted. Plaintiff did not seek to amend the complaint until the middle of trial, despite being in possession of the relied upon discovery for two years, and has not provided a reasonable excuse for the delay in making the motion. Moreover, the delay hindered defendant from seeking discovery that could refute plaintiff’s claims of misrepresentation.
(Internal citations omitted).