FILED: NEW YORK COUNTY CLERK 11/30/ :14 PM INDEX NO /2016 NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 11/30/2016

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1 FILED: NEW YORK COUNTY CLERK 11/30/ :14 PM INDEX NO /2016 NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 11/30/2016 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK JONATHAN HAYGOOD, -against- Plaintiff, PRINCE HOLDINGS 2012 LLC; STEVEN CROMAN; HARRIET CROMAN a/k/a HARRIET KAHAN CROMAN a/k/a HARRIET KAHAN; OREN GOLDSTEIN; and JANETH DONOVAN, Index No /2016 AFFIRMATION IN SUPPORT OF MOTION TO AMEND ANSWER Defendants. JOSHUA KOPELOWITZ, an attorney at law duly admitted to practice before the Courts of the State of New York, hereby affirms the following to be true under the penalties of perjury, pursuant to CPLR 2106: 1. I am a member of the law firm Rosenberg & Estis, P.C., attorneys for defendants, Prince Holdings 2012 LLC ("Prince"), Steven Croman, Harriet Croman s/h/a Harriet Croman a/k/a Harriet Kahan Croman a/k/a Harriet Kahan, Oren Goldstein and Janeth Donovan (collectively,"defendants"). I submit this affirmation in support of Defendants' motion for an order, pursuant to CPLR ~ 3025, granting Defendants leave to amend Defendants' verified answer dated July 21, 2016 (the "Original Answer") 2. Defendants seek to amend the Original Answer prior to the commencement of discovery in order to better clarify Defendants' position by, inter alia, including additional affirmative defenses which relate directly to Plaintiff's action, and to avoid undue delay later in this litigation. R E\49424\0025\653026v3 1 of 7

2 RELEVANT FACTS 3. Prince is the owner of a building located at 309 East 8th Street, New York, New York (the "Building"). 4. Jonathan Haygood ("Plaintiff') is the tenant of Apartment B within the Building (the "Premises") pursuant to a lease agreement dated February 15, 2015 (the "Lease"), between Plaintiff and Chloe Marten ("Marten"), as tenants and Prince, as landlord. By agreement dated February 29, 2016 (the "Extension"), between Plaintiff and Marten, as tenants and Prince, as landlord, Plaintiff and Marten renewed the Lease for an additional one year term. See of Plaintiff's summons and complaint filed on June 17, 2016 (the "Complaint") annexed hereto as Exhibit "A". 5. The sum and substance of Plaintiff's Complaint is that Plaintiff was entitled to a rent stabilized lease for the Premises and, in turn, is entitled to amounts that were allegedly overcharged during his tenancy. See Ex. A. Defendants have denied these allegations in both the Original Answers and Defendant's proposed amended answer (the "Amended Answer")Z. See Ex. B 22 and Ex. C Notably, in the Original Answer, Defendants alleged that Plaintiff and Marten's initial rent of $2, was a free market rent, not subject to regulation and, accordingly, Plaintiff and Marten were not overcharged. See Ex. B 22 and Ex. C As set forth in both the Original Answer and the Amended Answer, the increases to the last legal regulated rent for the Premises were justified by, among other things, a Rent Guidelines Board Order in effect at the time that Plaintiff and Marten commenced occupancy of the Premises (see Ex. B 9 and Ex. C 20); a long term vacancy allowance of 18.6% (see Ex. B ~ The Original Answer is annexed hereto as Exhibit "B". 2 The proposed Amended Answer is annexed hereto as Exhibit "C" of 7

3 10 and Ex. C 21); and Individual Apartment Improvements performed to the Premises (see Ex. B and Ex. C 22-32). A. The Requested Amendment 8. In the Complaint, Plaintiff asserts four causes of action seeking, inter alia, (1) a judgment for alleged rent overcharges, injunctive and declaratory relief (see Ex. A 78); (2) damages for alleged breaches of the warranty of habitability (see id. at 80-87); (3) injunctive relief and damages pursuant to General Business Law 349 (see id. at 96-97); and (4) damages and injunctive relief barring Defendants from violating New York City Consumer Protection Law (see id. at ). 9. On July 22, 2016, Defendants interposed the Original Answer. See Ex. B. 10. Prior to commencement of discovery, and after having an opportunity to properly review the relevant documents, Defendants determined that amending the Original Answer was necessary to clarify Defendants' position and avoid undue delay later in the action. A "redline" copy of the Amended Answer showing the changes made as compared to the Original Answer is annexed hereto as Exhibit "D". 11. Specifically, the Amended Answer adds ten affirmative defenses, each of which directly relate to the causes of action set forth in the Complaint, and modifies certain responses pled in the Original Answer. Specifically, Defendants seek to add affirmative defenses based upon, among other arguments, Plaintiff's failure to state a claim for which relief can be granted documentary evidence, Defendants' good faith, Plaintiffs unjust enrichment, the improper service of certain Defendants, Plaintiff's lack of irreparable harm, Plaintiffs lack of standing, and Plaintiff's naming of improper parties. See Ex. C and Additionally, the Amended Answer asserts a counterclaim for attorneys' fees, which Prince is entitled to recover by the terms of the parties' Lease. See Ex. C of 7

4 13. Lastly, Defendants seek to clarify some inconsistencies between the detailed affirmative defense in the Original Answer and pro forma denial and admissions of the Complaint's allegations. 14. On October 31, 2016, Defendants requested that Plaintiff consent to Defendants' filing the Amended Answer. A copy of the is annexed hereto as Exhibit "E". On November 3, 2016 Plaintiff's counsel advised that Plaintiff would not stipulate to Defendants' requested amendment, notwithstanding that such requests are liberally granted. See Ex. E. Thus, our office advised Plaintiff's counsel that Defendants would make the instant application. See Ex. E. 15. This action is in its infancy. To date, the parties have not engaged in any discovery and have yet to appear for a Preliminary Conference. 16. Moreover, the changes made in the proposed Amended Answer are consistent with allegations made in the detailed affirmative defense pled in the Original Answer. 17. In light of the foregoing, and as set forth in further detail herein, it is respectfully submitted that the Court should grant Defendants' motion for leave to file the Amended Answer. THE COURT SHOULD FREELY GRANT DEFENDANTS' MOTION FOR LEAVE TO AMEND THE ANSWER 18. It is well-settled that a motion for leave to amend a pleading should be "freely given." See CPLR 3025(b). See also, Edenwald Contracting Co. v City of New York, 60 NY2d 957 (1983); Fai~point Cos., LLC v Vella, 134 AD3d 645 (1st Dept 2015); Matter of Salon Ignazia, Inc., 34 AD3d 821 (2d Dept 2006). 19. Moreover, as was previously held by this Court "[i]n the absence of surprise or prejudice, it is an abuse of discretion, as a matter of law, for a court to deny leave to amend an answer, even during or after trial." Miller v Bayacoub, 2014 WL (Sup Ct NY Cty, Oct of 7

5 31, 2014) citing McCaskey, Davis & Assocs. v New York City Health & Hosps. Corp., 59 NY2d 755, 757 (1983). 20. In light of the liberal standard for amending a pleading, a party opposing the motion to amend must demonstrate that it would be substantially prejudiced by the amendment. See Forry Cent. Park South, Inc. v Anza, 130 AD3d 491, 491 (1st Dept 2015) (affirming a Supreme Court order which granted plaintiffs' motion to amend the complaint). 21. As the First Department stated in Jacobson v Croman, 107 AD3d 644, 645 (1st Dept 2013) when it reversed a Supreme Court order which denied plaintiff's motion to amend made after the filing of a note of issue: Another reason the IAS court denied plaintiff's motion was the passage of time. However, "mere lateness is not a barrier to..:amendment. It must be lateness couple with significant prejudice to the other side" (Edenwald Contr. Co. v. Ciry of New York, 60 NY2d 957, 959 [1983] [internal quotation marks omitted]). "The kind of prejudice required to defeat an amendment...must...be a showing of prejudice traceable not simply to the new matter sought to be added, but also to the fact that it is only now being added. There must be some special right lost in the interim, some change of position or some significant trouble or expense that could have been avoided had the original pleading contained what the amended one wants to add" (A.J. Pegno Constr. Corp. v. City of New York, 95 AD2d 665, 656 [1st Dept 1983] [internal quotation marks omitted]; see also e.g. Valdes v. Marbrose Realty, 289 AD2d 28, 29 [ 1st Dept 2001 ]). Defendant failed to show such prejudice. 22. Further, although Plaintiff has purported to serve discovery demands, "[t]he need for additional discovery does not constitute substantial prejudice." Forry Cent. Park South, Inc. v Anza, 130 AD3d at 491. See also, Jacobson v Croman, 107 AD3d at 645; MBIA Ins. Corp. v Greystone & Co., Inc., 74 AD3d 499, (1st Dept 2010) of 7

6 23. Here, the case is even more compelling to grant Defendants' motion for leave to file the Amended Answer Plaintiff cannot show any prejudice, let alone substantial prejudice, by a request to amend the Original Answer, made approximately four (4) months into the litigation. Notably, no discovery has taken place nor has a Preliminary Conference been held. Thus, Plaintiff's counsel can hardly claim to be surprised by the amended allegations. 24. Although Plaintiff's counsel may claim that the Amended Answer is improper because Defendants' seek to change certain responses set forth therein (see Ex. G), courts routinely permit amendments in these circumstances, particularly, where there is no showing of prejudice or surprise in connection with the amendment. See e.g. Sumpter v 5825 Broadway LLC, 19 AD3d 327 (1st Dept 2005) (motion to amend answer to withdraw admission granted); Pensee Associates, LTD v Quon Shih-Shong, 199 AD2d 73 (1st Dept 1993) (amendment of answer on eve of trial to withdraw admissions permitted). Moreover, the fact that the amendment may prove fatal to a plaintiff's case is not enough to establish prejudice. See Levy v Sternman 2001 WL (Civil Ct Kings Cty; Sept. 28, 2001) citing Seda v New York City Housing Authority, 181 AD2d 469 (1st Dept 1992). 25. In Antwerpse DiamantBank N.V. v Nissel, 27 AD3d 207 (1st Dept 2006), the Appellate Division First Department affirmed an order of the Supreme Court, New York County which granted defendants' motion to amend their answer to change an admission and to interpose a statute of limitations defense. Id. The Antwerpse Court held that "despite the passage of a year since the filing of the original answer, there was no prejudice to plaintiff because of the lack of significant discovery or other progress in the case." Id of 7

7 26. Further, under the liberal standard for amending pleadings, Defendants should be permitted to amplify the allegations of the Answer with additional detail, as well as to assert the additional defenses set forth above. 27. In light of the foregoing, it is respectfully submitted that the Court should grant Defendants' motion for leave to file the Amended Answer. 28. To expedite matters, upon granting the motion, Defendants' request that the Amended Answer be deemed served nunc pro tunc, with Plaintiff's responsive pleading, if any, due within twenty (20) days of an entered order granting the motion. WHEREFORE, the instant motion should be granted in all respects, together with such other and further relief as this Court may deem just and proper. Dated: New York, New York ~~ November 30, 2016 J UA KOPELOWITZ -7-7 of 7