If this court decides to grant leave to amend, plaintiff argues that amendment should be conditioned upon defendants paying plaintiff his costs, disbursements and attorneys' fees, and executing a stipulation forfeiting any award of disbursements in the event their affirmative defenses should ultimately prove dispositive. Here, defendants did not challenge the existence of the alleged agreement in the original answer. They did not propose the amendment until after the close of discovery and the filing of the Note of Issue. Defendants have not offered any explanation as to the delay in bringing this motion. However, there is an insufficient showing of prejudice to warrant dismissal of this motion.
Defendants move for partial summary judgment.
They also argue that the alleged agreement is not legally enforceable because essential terms such as the price and quantity of the BB shares are omitted. They contend that the alleged agreement was not supported by any consideration because plaintiff never paid or agreed to pay Rockrimmon for the securities. In opposition, plaintiff argues that there was a writing to confirm the agreement issued by plaintiff as an agent for Rockrimmon and sufficiently signed by plaintiff as an agent for Rockrimmon. Plaintiff contends that the transaction could be interpreted as a modification of his proprietary interest in the 47BH account rather than a sale of securities, placing it outside the Statute of Frauds. Plaintiff asserts that all the essential terms were either stated or determinable from the transaction, which was to have been determined, as was standard, at a price within the confines of the market.