LSK&D conducted a successful defense in Tabak v. Shaw Industries, Inc.

5/2/2017

LSK&D conducted a successful defense in Tabak v. Shaw Industries, Inc., – A.D.3d –, 2017 NY Slip Op 03213 (2d Dept., April 26, 2017).  In October 2013, on the eve of jury selection in this personal injury case, plaintiff’s last minute oral motion to change the date of the accident prompted the Supreme Court, Richmond County to strike the case from the trial calendar.  Nearly a year later – and almost four years after the action was commenced – plaintiff moved to restore the case and for leave to amend his complaint and bill of particulars to change the date of the accident.  The trial court granted plaintiff’s motion and denied Shaw’s cross-motion for summary judgment.  On the eve of trial, Dan argued on appeal that Shaw would be significantly prejudiced as a result of the unexplained delay. He also obtained a stay of trial pending determination of the appeal.  Despite considerable precedent that leave to amend pleadings should freely granted, the Appellate Division, Second Department agreed with Shaw, reversed the trial court’s order, denied plaintiff leave to amend, and dismissed his complaint.  The Appellate Division not only denied plaintiff’s belated motion to amend but held that defendant’s cross-motion “must” be granted because plaintiff, in seeking to amend, admitted that the original version did not occur.