FILED: NEW YORK COUNTY CLERK 02/21/ :54 PM INDEX NO /2013 NYSCEF DOC. NO. 20 RECEIVED NYSCEF: 02/21/2017

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1 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK X CARINE RAWSON-FISCHER, individually and on behalf of MODA EQUESTRE, LLC, -against- Plaintiff, PARLANTI USA, INC., PASSIONE EQUESTRE, INC., GIANLUCA CARON, GIOVANNI CARON, ORONATIVO FASHION, INC., PARLANTI USA SPORT HORSES LLC, and JOANNE FARRAR, Index No.: /2013 MEMORANDUM OF LAW IN SUPPORT OF ORDER TO SHOW CAUSE Defendants X INTRODUCTION Defendants, PASSIONE EQUESTRE, INC., GIANLUCA CARON, GIOVANNI CARON, ORONATIVO FASHION, INC., and PARLANTI USA SPORT HORSES LLC (collectively, the Parlanti Defendants ), through undersigned counsel and pursuant to Rules 3025(a) and (b) of New York Civil Practice and Rules, file this Memorandum of Law in Support of an Order to Show Cause requiring Plaintiffs to establish why the Parlanti Defendants should not be granted leave to file and serve their first Amended Answer, Affirmative Defenses and Counterclaim (the Amended Counterclaim ), in the form attached hereto. This memorandum of law is submitted in support thereof, and the Parlanti Defendants state as follows: RELEVANT FACTS AND PROCEDURAL BACKGROUND 1. The relevant facts and procedural history are set forth in the Affidavit of Gianluca Caro in Support of the Order to Show Cause (the Caron Affidavit ), filed contemporaneously herewith and incorporated herein by reference, in its entirety. Any capitalized terms not otherwise defined herein shall have the meanings ascribed to them in the Caron Affidavit. 1 1 of 5

2 2. Undersigned counsel has advised Plaintiff s counsel, and counsel for co- Defendant JOANNE FARRAR ( Farrar ), that the Parlanti Defendants intended to seek leave to file an Amended Counterclaim. 3. A true and correct copy of the Parlanti Defendants proposed first Amended Counterclaim is attached hereto as Exhibit A. LEGAL ARGUMENT 4. Pursuant to Rule 3025 of New York s Civil Practice Law and Rules ( CPLR ), amendments to pleadings, other than amendments permitted as a matter of course or to which the adverse party consents to in writing, may be made only upon leave of court. 5. Leave to amend or supplement a pleading should be freely granted upon such terms as may be just. CPLR 3025(b). A trial court should freely grant a motion for leave to amend a pleading in the absence of prejudice or unfair surprise resulting from a delay. Williams v. Tompkins, 132 A.D.3d 532 (1st Dep't 2015). 6. It is well-established that courts should adopt [a] liberal policy in allowing amendments to pleadings at any time before trial to ensure that the litigants have a full and just determination of the action upon the merits. Martin v. Katz, 15 A.D.2d 767 (1962). Thus, leave to amend a pleading is freely granted where the proposed amendment is not palpably insufficient or patently devoid of merit, and will not prejudice or surprise the opposing party. Shovak v. Long Island Commercial Bank, 50 A.D.3d 1118, 1120, 858 N.Y.S.2d 660 (2nd Dept.2008), lv. to appeal dismissed in part, denied in part, 11 N.Y.3d 762, 864 N.Y.S.2d 806, 894 N.E.2d 1196 (2008). 2 2 of 5

3 7. In the absence of prejudice or unfair surprise, it is an abuse of discretion, as a matter of law, for a trial court to deny a party s request to leave to amend his or her pleadings. Lanpont v. Savvas Cab Corp., 244 A.D.2d 208, 209 (1997). 8. To establish prejudice, which must be significant, there must be some indication that the opposing party has incurred some change in position or hindrance in the preparation of the case which could have been avoided had the original pleading contained the proposed amendment. Spitzer v. Schussel, 48 A.D.3d 233, 850 N.Y.S.2d 431 (1st Dept.2008). Under these circumstances, there is no prejudice to the Plaintiff. 9. Where, as here, no meaningful discovery has taken place, and there is also an absence of substantial progress in the action, leave to amend should be granted. Seda v. New York City Housing Authority, 181 A.D.2d 469, 470 (1st Dept. 1992) (Motion for leave to amend to include new defense granted where plaintiff was unable to show a three-year delay from the filing of the initial complaint was an adequate basis for denying a motion to amend); see also Arias Paulino v. Academy Bus Tours, Inc., 48 AD3d 350 (2008). 10. In the instant case, respectfully, the Court should exercise its discretion and grant the Parlanti Defendants leave to file the proposed Amended Counterclaim. There is no unfair surprise in granting the Parlanti Defendants leave to amend. 11. Any prejudice to the Plaintiff would be nominal, in comparison to the prejudice which the Parlanti Defendants would sustain without the ability to assert and raise all appropriate defenses. Despite the time that has passed since it was filed, this case is still effectively in its infancy. No depositions have occurred. Virtually no discovery has taken place. Plaintiff s counsel (and prior counsel for the Parlanti Defendants) have allowed this case to languish for over three (3) years. Given the totality of the circumstances including, without limitation, the 3 3 of 5

4 parties prior failure to prosecute this case, or conduct any discovery within the parameters set forth by this Court, it is only reasonable that the Parlanti Defendants would seek leave to amend their pleading to conform to facts eventually learned through discovery (or via independent investigations). 12. This is the Parlanti Defendants first request to amend their pleading. The proposed amendment is not palpably insufficient or patently devoid of merit, and will not prejudice or surprise the opposing party. 13. Moreover, as noted in the Caron Affidavit, the proposed Amended Counterclaim asserts additional claims and/or defenses based on relevant facts and claims arising out of the same transactions and occurrences as Plaintiff's claim, which were only recently discovered and/or clarified. And while New York has no compulsory counterclaim rule, res judicata principles could preclude an unsuccessful defendant from later asserting any factually related claims seeking relief that may be inconsistent with a judgment awarded in this action. See Henry Modell & Co. v. Minister, Elders & Deacons of the Reformed Dutch Church of the City of New York, 502 N.E.2d 978, 981 (N.Y. 1986); see also CPLR 3019(a) ( [a] counterclaim may be any cause of action in favor of one or more defendants or a person whom a defendant represents against one or more plaintiffs, a person whom a plaintiff represents or a plaintiff and other persons alleged to be liable. ). CONCLUSION WHEREFORE, Defendants, PASSIONE EQUESTRE, INC., GIANLUCA CARON, GIOVANNI CARON, ORONATIVO FASHION, INC., and PARLANTI USA SPORT HORSES LLC, respectfully request the Court enter an order granting the Parlanti Defendants leave to file an Amended Counterclaim, and deem the proposed Amended Counterclaim, 4 4 of 5

5 attached as an exhibit hereto, as filed and served as of the date of the Court s Order granting such relief, together with such further and different relief as the Court deems just and proper. Dated: New York, New York February 20, GREENSTEIN & LUBLINER, LLP Bryant Park, 104 W 40 th Street, Ste 400 New York City, NY rlubliner@greenstein-law.com Alt: smerwin@greenstein-law.com By: /s/ Richard S. Lubliner, Esq. New York Bar Number: of 5