The following e-filed documents, listed by NYSCEF document number (Motion 001) 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32 were read on this motion to/for AMEND COMPLAINT DECISION ORDER ON MOTION Plaintiff Timothy Meyer (“Meyer”) moves to amend his complaint, add a party, and serve an amended summons pursuant to CPLR 1003 and 3025(b). The proposed amended complaint asserts two additional claims: (i) successor liability as against proposed new defendant RBP Partners, LLC as successor to defendant Blue Sky Alternative Investments LLC, and (ii) violation of notice and recordkeeping requirements under New York Labor Law §195. Leave to amend a pleading pursuant to CPLR §3025 “shall be freely given,” in the absence of prejudice or surprise (see e.g. Thompson v. Cooper, 24 AD3d 203, 205 [1st Dept 2005]; Zaid Theatre Corp. v. Sona Realty Co., 18 AD3d 352, 354 [1st Dept 2005]). Mere lateness in seeking such relief is not in itself a barrier to obtaining judicial leave to amend (see Ciarelli v. Lynch, 46 AD3d 1039 [3d Dept 2007]). Rather, when unexcused lateness is coupled with significant prejudice to the other side, denial of the motion for leave to amend is justified (see Edenwald Contracting Co. v. City of New York. 60 NY2d 957, 958 [1983]). Prejudice in this context is shown where the nonmoving party is “hindered in the preparation of his case or has been prevented from taking some measure in support of his position” (Loomis v. Civetta Corinno Const. Co., 54 NY2d 18. 23 [1981]). In order to conserve judicial resources, examination of the underlying merit of the proposed amendment is mandated (Thompson, supra, 24 AD3d at 205; Zaid, supra, 18 AD3d at 355). Leave will be denied where the proposed pleading fails to state a cause of action, or is palpably insufficient as a matter of law (see Aerolineas Galapagos, S.A. v. Sundowner Alexandria, 74 AD3d 652 [1st Dept 2010]; Thompson, supra. 24 AD3d at 205). Thus, a motion for leave to amend a pleading must be supported by an affidavit of merit or other evidentiary proof (Delta Dallas Alpha Corp. v. S. St. Seaport Ltd. Partnership, 127 AD3d 419, 420 [1st Dept 2015]). As the party seeking the amendment, plaintiff has the burden in the first instance to demonstrate their proposed claims’ merits, but defendants, as the parties opposing the motion, “must overcome a presumption of validity in the moving party’s favor, and demonstrate that the facts alleged in the moving papers are obviously unreliable or insufficient to support the amendment” (Peach Parking Corp. v. 346 W. 40th St. LLC, 42 AD3d 82, 86 [1st Dept 2007]). Where there has been extended delay in seeking leave to amend, the party seeking to amend a pleading must establish a reasonable excuse for the delay (see Heller v. Louis Provenzano, Inc., 303 AD2d 20, 24 [1st Dept 2003]). In support, plaintiff argues that his proposed amended complaint successfully states a claim for successor liability against new defendant RBP, alleging that RBP is a mere continuation of defendant Blue Sky which, since June 2019, has become an empty shell with its assets stripped and transferred to RBP (PI. Br. at 6 [Doc. No. 13]); Proposed Compl.
75-76, 80-83, 94-99 [Doc. No. 15]; Meyer Aff.
