Leave to amend should not be granted on the eve of trialDecember 10, 2009

We often see motions to amend being denied because an amendment is palpably devoid of merit.  We rarely see these motions denied because the motion to amend was made too late.  Here is an example: American Cleaners, Inc. v American Intl. Specialty Lines Ins. Co., 2009 NY Slip Op 09172 (2d Dept. 2009)

“However, where the application for leave to amend is made long after the action has been certified for trial, judicial discretion in allowing such amendments should be discrete, circumspect, prudent, and cautious'” (Morris v Queens Long Is. Med. Group, P.C., 49 AD3d at 828, quoting Clarkin v Staten Isl. Univ. Hosp., 242 AD2d 552, 552). “Moreover, when . . . leave is sought on the eve of trial, judicial discretion should be exercised sparingly” (Morris v Queens Long Is. Med. Group, P.C., 49 AD3d at 828; see Comsewogue Union Free School Dist. v Allied-Trent Roofing Sys., Inc., 15 AD3d 523, 525; Rosse-Glickman v Beth Israel Med. Ctr.-Kings Hwy. Div., 309 AD2d 846). “In exercising its discretion, the court should consider how long the party seeking the amendment was aware of the facts upon which the motion was predicated, whether a reasonable excuse for the delay was offered, and whether prejudice resulted therefrom”

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