        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

151
CA 15-01244
PRESENT: WHALEN, P.J., CENTRA, LINDLEY, TROUTMAN, AND SCUDDER, JJ.


PUTRELO CONSTRUCTION COMPANY,
PLAINTIFF-APPELLANT,

                    V                             MEMORANDUM AND ORDER

TOWN OF MARCY, DEFENDANT-RESPONDENT.
---------------------------------------------
TOWN OF MARCY, THIRD-PARTY PLAINTIFF,

                    V

BONACCI ARCHITECTS, PLLC, SUCCESSOR IN
INTEREST TO FULIGNI-FRAGOLA ARCHITECTS, PLLC,
THIRD-PARTY DEFENDANT-RESPONDENT.


SHEATS & BAILEY, PLLC, BREWERTON (DIANA PLUE OF COUNSEL), FOR
PLAINTIFF-APPELLANT.

FELT EVANS, LLP, CLINTON (ANTHONY G. HALLAK OF COUNSEL), FOR
DEFENDANT-RESPONDENT.

SUGARMAN LAW FIRM, LLP, SYRACUSE (JENNA W. KLUCSIK OF COUNSEL), FOR
THIRD-PARTY DEFENDANT-RESPONDENT.


     Appeal from an order of the Supreme Court, Oneida County (Norman
I. Siegel, J.), entered September 29, 2014. The order denied the
motion of plaintiff for leave to amend the ad damnum clause in its
complaint, granted the cross motion of defendant to limit proof of
damages at trial, and granted the cross motion of third-party
defendant to dismiss the first cause of action of plaintiff to the
extent that plaintiff seeks to recover $33,323.31 for change orders
## 7, 11, 12, 13 and 17.

     It is hereby ORDERED that the order so appealed from is
unanimously modified on the law by granting plaintiff’s motion, and by
denying those parts of the cross motions seeking to dismiss the first
cause of action to the extent it seeks payment for change orders #12
and #17 and reinstating the complaint to that extent, and as modified
the order is affirmed without costs.

     Memorandum: Plaintiff commenced this action seeking damages for
breach of contract in connection with its construction of a new town
hall for defendant-third-party plaintiff (hereafter, defendant).
Defendant commenced a third-party action against third-party
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                                                         CA 15-01244

defendant, the successor in interest to the architect who contracted
with defendant. On a prior appeal, we affirmed an order granting the
motion of third-party defendant for partial summary judgment
dismissing the second cause of action, which sought delay damages
(Putrelo Constr. Co. v Town of Marcy, 105 AD3d 1406). Plaintiff now
appeals from an order denying its motion for leave to amend the ad
damnum clause, granting defendant’s cross motion to limit the proof of
damages at trial, and granting third-party defendant’s cross motion
for summary judgment dismissing the first cause of action in part.

     We agree with plaintiff that Supreme Court abused its discretion
in denying its motion to amend the ad damnum clause from $77,585.50 to
$111,331.13, and we therefore modify the order by granting the motion.
It is axiomatic that “ ‘[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’ ” (Holst v Liberatore, 105
AD3d 1374, 1374; see CPLR 3025 [b]; Meyer v University Neurology, 133
AD3d 1307, 1309; McGrath v Town of Irondequoit, 120 AD3d 968, 969).
Plaintiff failed to include an amended pleading with its motion, as
required by CPLR 3025 (b). Under the circumstances of this case,
however, we conclude that the error was merely a technical defect that
the court should have disregarded (see generally CPLR 2001), inasmuch
as “the limited proposed amendment[ was] clearly described in the
moving papers” and did not prejudice defendant or third-party
defendant (Medina v City of New York, 134 AD3d 433, 433; cf. Barone v
Concert Serv. Specialists, Inc., 127 AD3d 1119, 1120).

      We further conclude that defendant and third-party defendant
failed to show that they would be prejudiced by the amendment. “[I]n
the absence of prejudice . . . , a motion to amend the ad damnum
clause, whether made before or after the trial, should generally be
granted” (Loomis v Civetta Corinno Constr. Corp., 54 NY2d 18, 23,
rearg denied 55 NY2d 801). We reject the contention of defendant and
third-party defendant that the amendment was “palpably insufficient or
patently devoid of merit” (Corwise v Lefrak Org., 93 AD3d 754, 754).
Defendant and third-party defendant rely upon documents submitted by
them in opposition to the motion, but “ ‘[a] court should not examine
the merits or legal sufficiency of the proposed amendment unless the
proposed pleading is clearly and patently insufficient on its face’ ”
(Holst, 105 AD3d at 1374-1375; see Favia v Harley-Davidson Motor Co.,
Inc., 119 AD3d 836, 836). Finally, while the delay in moving to amend
was extensive and plaintiff provided no excuse for it, “ ‘[m]ere
lateness is not a barrier to the amendment. It must be lateness
coupled with significant prejudice to the other side’ ” (Edenwald
Contr. Co. v City of New York, 60 NY2d 957, 959), which, as we
previously concluded, defendant and third-party defendant did not
show.

     With respect to defendant’s cross motion, defendant contends that
it merely sought an evidentiary ruling and thus that no appeal lies
from the order granting the cross motion. We reject that contention,
and instead conclude that defendant’s cross motion was the functional
equivalent of a motion for partial summary judgment (see Dischiavi v
Calli, 125 AD3d 1435, 1436; Charter Sch. for Applied Tech. v Board of
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                                                         CA 15-01244

Educ. for City Sch. Dist. of City of Buffalo, 105 AD3d 1460, 1464).
In addition, with respect to the cross motions by defendant and third-
party defendant, “[a]lthough successive summary judgment motions
generally are disfavored absent newly discovered evidence or other
sufficient cause . . . , neither Supreme Court nor this Court is
precluded from addressing the merits of such a motion” (Giardina v
Lippes, 77 AD3d 1290, 1291, lv denied 16 NY3d 702; see Sexstone v
Amato, 8 AD3d 1116, 1116-1117, lv denied 3 NY3d 609). The court
appropriately exercised its discretion in considering the merits of
the cross motions (see generally Rose v Horton Med. Ctr., 29 AD3d 977,
978).

     Third-party defendant’s cross motion sought to dismiss the first
cause of action to the extent plaintiff sought to recover $33,323.31
for change orders ## 7, 11, 12, 13, and 17 because plaintiff failed to
file a notice of claim within the time limitations of Town Law § 65
(3). Defendant’s cross motion was the functional equivalent of a
partial summary judgment motion seeking that same relief. Town Law
§ 65 (3) requires a written verified claim to be filed “within six
months after the cause of action shall have accrued” (id.). As we
explained in the prior appeal, the contract between plaintiff and
defendant provided for a date of accrual as to “ ‘acts or failures to
act occurring prior to the relevant date of Substantial Completion’ ”
to be no later than the date of substantial completion (Putrelo
Constr. Co., 105 AD3d at 1407). Defendant and third-party defendant
established that third-party defendant rejected payment for work
plaintiff had performed or proposed for change orders ## 7, 11, and 13
prior to the date of substantial completion, and therefore those
claims accrued no later than the date of substantial completion.
Inasmuch as the notice of claim was not filed within six months of
that date, it was untimely, and the court properly granted the cross
motions insofar as they sought dismissal of the first cause of action
with respect to those change orders. We further conclude, however,
that the court erred in granting those parts of the cross motions
seeking to dismiss the first cause of action to the extent it seeks to
recover payment for change orders #12 and #17, and we therefore
further modify the order accordingly. Defendant and third-party
defendant did not submit any evidence that payment for those change
orders was rejected prior to the date of substantial completion.




Entered:   March 18, 2016                       Frances E. Cafarell
                                                Clerk of the Court
