The following numbered papers read on this motion by plaintiff granting plaintiff leave to renew and reargue the dismissal of plaintiff’s breach of contract claim for unpaid interest and the denial of plaintiff’s cross-motion on the issue of liability for interest on unpaid common charges set forth in the order dated July 3, 2018, or in the alternative granting plaintiff leave to amend its complaint to include a cause of action for interest on unpaid common charges.Papers NumberedNotice of Motion — Affidavits — Exhibits EF 332-353Answering Affidavits — Exhibits EF 357-361Reply Affidavits EF 362-365 Upon the foregoing papers it is ordered that this motion is determined as follows:This is an action to recover unpaid common charges. After over two years of litigation, the defendant made a payment of its outstanding common charges. The defendant then moved for summary judgment to dismiss the complaint, while the plaintiff cross moved for summary judgment on the issue of liability for the first cause of action for interest on the outstanding common charges and the fourth causes of action for attorneys’ fees. The court in an order dated July 3, 2018 granted the branches of the defendant’s motion dismissing the first, second, third, fifth and sixth causes of action are granted, but denied the branch dismissing the fourth cause of action. The court granted the branch of the plaintiff’s cross motion on liability on the fourth cause of action, but denied the branch seeking interest on the unpaid common charges. The plaintiff has now moved to renew and reargue that order.The motion by plaintiff is denominated as one for renewal and reargument. A motion to renew must be supported by new or additional facts not offered on the prior motion that would change the prior motion and must contain a reasonable justification for why the facts were not presented on the prior motion or shall demonstrate that there has been a change in the law that would change the prior determination (CPLR 2221(e)(2); see Williams v. Peralta, 37 AD3d 712 [2d Dept 2007]; Olson v. Russell, 35 AD2d 684 [2d Dept 2006]; McNeil v. Dixon, 9 AD3d 481 [2d Dept 2004]; Hart v. City of New York, 5 AD3d 438 [2d Dept 2004]). Here, the plaintiff failed to offer any new facts that were unavailable at the time of the prior motion that would change the prior determination.Turning next to the branch of the motion to reargue, it too must be denied. It is within the court’s discretion to grant a motion for reargument when it appears that the court may have “overlooked certain facts and misapplied the law in its initial order” (Dunitz v. J.L.M. Consulting Corp., 22 AD3d 455, 456 [2d Dept 2005]; Marini v. Lombardo, 17 AD3d 545 [2d Dept 2005]; CPLR 2221). Here the plaintiff failed to demonstrate that the Court misapplied any controlling principle of law or misapprehended any facts that were put forth before it (see Boboyev v. Gomez, 304 AD2d 600 [2d Dep 2003]; McNamara v. Rockland County Patrolmen’s Benevolent Assoc., 302 AD2d 435 [2d Dept 2003]).In the alternative, the plaintiff has moved to amend its complaint to include a cause of action for interest on unpaid common charges. Leave to amend a pleading should be freely given absent prejudice to the other party, provided the amendment is not palpably insufficient (CPLR 3025[b]; Ruddock v. Boland Rentals, 5 AD3d 368 [2d Dept 2004]; Holchendler v. We Transport, 292 AD2d 568 [2d Dept 2002]). However, where the application for leave to amend is made long after the action has been certified for trial, “judicial discretion in allowing such an amendment should be discrete, circumspect, prudent and cautious” (Tabak v. Shaw Indus., Inc., 149 AD3d 1132 [2d Dept 2017]; Alrose Oceanside, LLC v. Mueller, 81 AD3d 574 [2d Dept 2011]; Morris v. Queens Long Is. Med. Group, P.C., 49 AD3d 827 [2d Dept 2008]). Further, where leave to amend is sought on the eve of trial, “judicial discretion should be exercised sparingly” (Canals v. Lai, 132 AD3d 626 [2d Dept 2015]; Young Soon Oh v. Hua Jin, 124 AD3d 639 [2d Dept 2015]; Green v. New York City Hous. Auth., 81 AD3d 890 [2d Dept 2011]). Here, granting the plaintiff’s motion would substantially prejudice the defendants and therefore should be denied. The plaintiff did not seek interest on unpaid common charges in either the complaint or multiple filings with the court and cannot now seek it without prejudice to the defendant. Furthermore, the plaintiff did not offer a reasonable for excuse for the delay (see Canals, 132 AD3d at 627).Accordingly, the motion is denied.Dated: October 16, 2018
