FILED: KINGS COUNTY CLERK 07/26/ :10 AM INDEX NO /2015 NYSCEF DOC. NO. 47 RECEIVED NYSCEF: 07/26/2018

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1 STATE OF NEW YORK SUPREME COURT : KINGS COUNTY NEW YORK CONGREGATIONAL, MEMORANDUM OF LAW IN SUPPORT OF MOTION TO Plaintiff, AMEND COMPLAINT -against- Index No.: /2015 AMELIA WILLIAMS, RJI No.: Defendant. Judge Assigned: Hon. PRELIMINARY STATEMENT Plaintiff, complaining of the Defendant, by and through Plaintiff's attorneys, HINMAN, HOWARD & KATTELL, LLP, hereby moves for leave to amend its Complaint, pursuant to CPLR 3025 (b). Plaintiff moves to update the relief sought to reflect the current bill due and owing of $43, Attached to this motion is a proposed Amended Complaint incorporating the current bill. Wherefore, Plaintiff prays for an Order allowing it leave to amend its Complaint against Defendant and for such other and further relief as is deemed proper. STATEMENT OF FACTS Defendant Amelia Williams is the daughter of Mr. Darnel Williams who resided at Plaintiff's facility until his demise on August 26, Defendant was - financially - responsible for Mr. Williams during his stay at Plaintiff's facility and entered into an Admissions Agreement with the facility. (A copy of the Admission Agreement is annexed as Exhibit A to the Affinnation of Andria Adigwe ("Adigwe Aff.") submitted in support of this Motion). Till this day, Ms. Williams has failed to remit the required amount to Plaintiff. 1 of 5

2 Plaintiff filed and obtained a default judgment against Defendant in the then outstanding amount of $38, (Adigwe Aff. Exh. B and C). At the time of the judgment Mr. Williams was still residing at the facility and therefore still accruing fees. Defendant obtained an attorney, Ms. Anna Park, and Plaintiff withdrew the default judgment. Plaintiff now submits this Amended Complaint to reflect the current outstanding bill of $43, (Adigwe Aff. Exh. D). ARGUMENT CPLR 3025(b) provides, "A party may amend his pleading, or supplement it by setting forth additional or subsequent transactions or occurrences, at any time by leave of court.... Leave shall be freely given..... It is well established that leave to amend pleadings should be "freely granted unless the proposed amendment is palpably insufficient or patently devoid of merit." (Marcum, LLP v Silva, 117 AD3d 917, 917 [2d Dept 2014]; Bernardi v Spyratos, 79 AD3d 684, 688 [2d Dept 2010]). Here, leave to amend the Complaint should be granted because Plaintiff's amendment is related to the initial Complaint and is meritorious under New York Contract Law and New York Debtor and Creditor Law. Furthermore, the Defendant will not suffer prejudice as Plaintiff, as the Responsible Party, was provided with a monthly bill even after the default judgment was entered. In addition, Defendant was notified of the upcoming Motion to Amend Complaint via answers to Defendant's interrogatories. 2 of 5

3 A. DEFENDANT WILL NOT SUFFER PREJUDICE IF LEAVE TO AMEND IS GRANTED It should be born in mind that 'prejudice is more than the mere exposure of the [party] to greater liability. Rather, there must be some indication that the [party] has been hindered in the preparation of [the party's] case or has been prevented from taking some measure in support of [its] position. The burden of establishing prejudice is on the party opposing the amendment." amendment," (Betz v Blatt, 160 AD3d 689, 693 [2d Dept 2018] citing Kimso Apts., LLC v Gandhi, 24 NY3d 403, 411, 998 N.Y.S.2d 740, 23 N.E.3d 1008 [internal quotation marks and citations omitted]). In fact, "where no prejudice is shown, the amendment may be allowed during or even after trial." Murray v City of New York, 43 NY2d 400, 405 [1977] citing Dittmar Explosives, Inc. v A. E. Ottaviano, Inc., 20 NY2d 498, 502 [1967]. To prevent prejudice, an amended complaint should relate back to the initial complaint. (Koenig v Action Target, Inc., 76 AD3d 997, 998 [2d Dept 2010].)). Mere lateness is not enough to show prejudice. (Ciminello v Sullivan, 120 AD3d 1176, 1177 [2d Dept 2014]). Here, Plaintiff's Amended Complaint arose out of the same occurrence and transaction as the initial Complaint, namely the residence of Mr. Darnel Williams at Plaintiff's facility and Ms. Amelia Williams' non-payment of his bill. Ms. Williams is not prejudiced as she has been kept abreast of the current bill. Furthennore, in May 2018, Plaintiff notified Defendant of the upcoming Motion to Amend Complaint. B. THE PROPOSED AMENDMENT IS MERITORIOUS As previously stated, "leave to amend a pleading should be freely granted unless the proposed amendment is palpably insufficient or patently devoid of merit, and will not prejudice or surprise the opposing party." (Trataros Constr. Inc. v NY Cit Hous. Auth., 34 3 of 5

4 AD3d 451, 452 [2d Dept 2006]). Furthennore, "a court shall not examine the legal sufficiency or merits of a pleading unless such insufficiency or lack of merit is clear and free from doubt". (Faiella v Tysens Park Apts., LLC, 110 AD3d 1028, 1029 [2d Dept 2013]). Here, breach of contract is clear. Plaintiff already obtained a default judgment in the amount of $38, and merely withdrew the order out of courtesy of Defendant who had just obtained the services of an attorney. The Complaint makes clear that Ms. Williams breach the contract: Ms. Amelia Williams signed an Admission Agreement with Plaintiff and failed to remit the required payments; furthermore, Ms. Amelia Williams accessed Mr. Darnel Williams' account and used it for her own benefit rendering Mr. Darnel Williams insolvent such that he was unable to pay for his care at Plaintiff's facility in violation of New York Debtor's Law. CONCLUSION Defendants would not suffer prejudice by permitting the amendment, and the proposed amendment does not appear to be palpably improper or devoid of merit. Plaintiff moves the Court for an order granting leave to amend the complaint as set forth in the attached proposed amendment. A motion to conform the pleadings to the proof may be made at any time and should be liberally granted unless doing so results in prejudice to the nonmoving party. 4 of 5

5 Dated: July 24, 2018 Binghamton, New York Andria Adigwe, Esq. HINMAN, HOWARD & KATT LL, LLP Attorneys for Plaintiff Office and Post Office Address Hinman, Howard & Kattell, LLP 80 Exchange Street P.O. Box 5250 Binghamton NY [Telephone: (607) ] 5 of 5