SUPREME COURT OF THE STATE OF NEW YORK

 Appellate Division, Fourth Judicial Department

715 

CA 13-01413 

PRESENT: SCUDDER, P.J., SMITH, CARNI, LINDLEY, AND WHALEN, JJ. 

 

 

KAREN MCGRATH AND STEVEN K. FOLEY, 

PLAINTIFFS-RESPONDENTS, 

 

V MEMORANDUM AND ORDER

 

TOWN OF IRONDEQUOIT, DEFENDANT-APPELLANT.

 

LIPPMAN O=CONNOR, BUFFALO (GERARD E. O=CONNOR OF COUNSEL), FOR 

DEFENDANT-APPELLANT. 

JOHN P. LOMENZO, JR., PENFIELD, FOR PLAINTIFFS-RESPONDENTS.

 

Appeal from an order of the Supreme Court, Monroe County (Ann Marie 

Taddeo, J.), entered April 8, 2013. The order granted the motion of 

plaintiffs for leave to serve a second amended complaint and to vacate 

the note of issue and certificate of readiness. 

It is hereby ORDERED that said appeal from the order insofar as it 

concerns the note of issue and certificate of readiness is unanimously 

dismissed and the order is affirmed without costs. 

Memorandum: This action arises from a landslide that occurred on 

a steeply-sloped parcel of real property owned by defendant, and which 

allegedly caused part of plaintiffs= adjacent property to subside. 

Plaintiffs seek damages for diminution of value and the cost of repairs 

to their property, asserting that defendant created and negligently 

maintained a private nuisance resulting in the landslide. Supreme Court 

granted plaintiffs= motion for an order vacating the note of issue and 

certificate of readiness and for leave to serve a second amended complaint. 

We note at the outset that we dismiss the appeal from the order insofar 

as it granted that part of plaintiffs= motion seeking to vacate the note 

of issue and certificate of readiness. On appeal, defendant seeks, inter 

alia, reinstatement of the note of issue and certificate of readiness, 

but a postargument submission by plaintiffs= attorney establishes that 

a new note of issue and certificate of readiness have been filed. 

Consequently, Awe conclude that the rights of the parties cannot be 

affected by the determination of [that part of the] appeal[,] and it is 

therefore moot@ (Matter of Hearst Corp. v Clyne, 50 NY2d 707, 714; see 

generally Matter of Anonymous v New York City Health & Hosps. Corp., 70 

NY2d 972, 974, rearg denied 71 NY2d 994).

Contrary to defendant=s contention, we also conclude that the court 

properly granted that part of the motion seeking leave to serve a second 
-2- 715 

CA 13-01413 

amended complaint. AGenerally, [l]eave to amend a pleading should be 

freely granted in the absence of prejudice to the nonmoving party where 

the amendment is not patently lacking in merit@ (Anderson v Nottingham 

Vil. Homeowner=s Assn., Inc., 37 AD3d 1195, 1198, amended on rearg 41 AD3d 

1324 [internal quotation marks omitted]; see CPLR 3025 [b]). Although 

plaintiffs did not make the motion promptly after service of the note 

of issue and certificate of readiness, it is well settled that A >[m]ere 

lateness is not a barrier to the amendment. It must be lateness coupled 

with significant prejudice to the other side, the very elements of the 

laches doctrine= @ (Edenwald Contr. Co. v City of New York, 60 NY2d 957, 

959, quoting Siegel, Practice Commentaries, McKinney=s Cons Laws of NY, 

Book 7B, CPLR 3025:5, p 477). APrejudice requires >some indication that 

the defendant has been hindered in the preparation of his case or has 

been prevented from taking some measure in support of his position= @

(Cherebin v Empress Ambulance Serv., Inc., 43 AD3d 364, 365). Here, 

defendant failed to establish any prejudice arising from plaintiffs=

lateness, and thus the court properly granted plaintiffs leave to serve 

a second amended complaint. 

Entered: August 8, 2014 Frances E. Cafarell

Clerk of the Court