Daniel R. Wotman & Associates, PLLC v. Chang , 148 A.D.3d 571 ( 2017 )

Daniel R. Wotman & Assoc., PLLC v Chang (2017 NY Slip Op 02141)

Daniel R. Wotman & Assoc., PLLC v Chang

2017 NY Slip Op 02141

Decided on March 23, 2017

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on March 23, 2017
Tom, J.P., Friedman, Mazzarelli, Kapnick, Kahn, JJ.

3479 110893/10

[*1]Daniel R. Wotman & Associates, PLLC, Plaintiff-Respondent,

v

Janet Chang, Defendant-Appellant.

Vernon & Ginsburg, LLP, New York (Mel B. Ginsburg of counsel), for appellant.

Steinberg & Cavaliere, LLP, White Plains (Ronald W. Weiner of counsel), for respondent.

Order, Supreme Court, New York County (George J. Silver, J.), entered December 23, 2015, which granted plaintiff's motion for summary judgment dismissing defendant's counterclaim for legal malpractice and denied defendant's cross motion to amend her counterclaim, unanimously affirmed, without costs.

In this action commenced by plaintiff to recover legal fees, defendant asserted a counterclaim for legal malpractice. Plaintiff moved for summary judgment dismissing that counter-claim and in response, defendant cross-moved for leave to amend the counterclaim to expand and alter her theory of recovery.

Supreme Court providently exercised its discretion in denying defendant leave to amend her legal malpractice counterclaim. The motion for leave to amend came years after the counterclaim was first asserted and well after the conclusion of discovery. Moreover, defendant failed to articulate a reasonable excuse for her delay in amending the counterclaim and was unquestionably in possession of all the facts she needed to seek leave at an earlier time in the litigation (see Holliday v Hudson Armored Car & Courier Serv., 301 AD2d 392 [1st Dept 2003], lv dismissed, denied 100 NY2d 636 [2003]).

The motion court also properly granted plaintiff summary judgment dismissing the counterclaim. Defendant's proof failed to demonstrate that plaintiff was negligent in any way (Brooks v Lewin, 21 AD3d 731, 734 [1st Dept 2005], lv denied 6 NY3d 713 [2006]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: MARCH 23, 2017

CLERK