Station Associates, Inc.
Long Island R. Co.
[188 N.Y.S.2d 437] Gerard I. Nierenberg, Long Island City, for plaintiff.
Otto M. Buerger, New York City, for defendant.
LOUIS L. FRIEDMAN, Justice.
Three motions are here presented for determination: First, defendant's motion to cancel and discharge a lis pendens, or, in the alternative, grant leave to substitute an undertaking therefor; second, plaintiff's cross-motion for leave to serve an amended complaint adding a cause of action for specific performance and to file an amended lis pendens; third, motion by plaintiff to strike the second counterclaim from defendant's amended answer.
The present complaint here sought to be amended, sets forth two causes of action arising out of a claimed breach of contract by defendant for the sale of real property. The first cause alleges damage in the sum of $25,000, being plaintiff's down payment on the contract. The second seeks damages in the sum of $1,630,000 arising from said breach.
The court will first discuss the cross-motion made by plaintiff, wherein it seeks to serve an amended complaint.
This action was commenced on October 30, 1958. Defendant served an amended answer containing its counterclaim on January 2, 1959. Plaintiff had a right, as of course, to serve an amended complaint on or before January 22, 1959, or if the amended answer was served by mail, within three days thereafter (Civil Practice Act, sec. 244). Having failed to do so, it was necessary that the instant application be made and it was made on January 29, 1959, either four or seven days after the complaint could have been amended as of course (the difference in time depending on whether the amended answer was served personally or by mail).
A motion such as this is addressed to the discretion of the court (Civil Practice Act, sec. 105; Ponticello v. Prudential Ins. Co. of America, 281 A.D. 549, 121 N.Y.S.2d 305). The courts have adopted a liberal attitude in permitting amendments to pleadings so that litigants may put their pleadings in such shape as will enable all questions affecting their rights to be determined upon the trial (Newman v. Goldberg, 250 A.D. 431, 294 N.Y.S. 211; Bendan Holding Corp. v. Rodner, 245 A.D. 723, 280 N.Y.S. 252). On motions to amend, [188 N.Y.S.2d 438] the court does not examine into and determine the merits or legal sufficiency of a proposed pleading, unless it appears on the face thereof that the pleading may not even be asserted (Cohen v. Dana, 273 A.D. 1017, 79 N.Y.S.2d 261; Gillette v. Allen, 269 A.D. 441, 56 N.Y.S.2d 307; Lazarus v. Rice, 268 A.D. 985, 52 N.Y.S.2d 781). The better practice is to test the sufficiency of the amended pleading, either after it has been served or at the time of trial (Newman v. Goldberg, supra). The only requirement is that the proposed amendment be sought in good faith, and that no injustice or prejudice will result to the adverse party by reason of such amendment (Hanna v. Mitchell, 202 A.D. 504, 507, 196 N.Y.S. 43, 46, affirmed 235 N.Y. 534, 139 N.E. 724). It is only where the amendment is sought not for purposes of trial but for an ulterior motive, that the court should refuse to grant leave to amend (Rose v. Rose, Sup., 115 N.Y.S.2d 68), or where it clearly appears that the moving party will not benefit thereby but that it will result in a waste of time of the trial court (Stanford v. Cayuga Linen & Cotton Mills, Inc., 255 A.D. 928, 8 N.Y.S.2d 711).
Submitted by defendant in opposition to plaintiff's motion are numerous affidavits, correspondence and other papers in an attempt to show that plaintiff lacks good faith in making the present application. No purpose would be served in setting forth in detail the numerous acts or omissions charged against plaintiff in said answering papers. However, despite careful
analysis of these various documents during the lengthy period of time that this motion has been before the court, the court is unable to come to a conclusion that the plaintiff's application to amend lacks good faith or that the amendment is not sought on its merits but for the ulterior motive of forestalling defendant's attempt to obtain a cancellation of the lis pendens. Had plaintiff served its amended complaint just four or seven days sooner, there would have been no need for the present application and defendant's position under such circumstances would have been exactly as it will be by reason of the granting of the presently sought amendment.
The controversy between the parties arises out of a contract wherein and by which defendant agreed to sell certain real property to the plaintiff for development as a building project. Part of the land in question was being used by the defendant for the purpose of running some of its railroad trains thereupon, and the agreement contemplated the continued use of this railroad right of way. Additionally, part of the land was held by the defendant by virtue of a railroad title instead of a fee title, so that the purchaser, in order to secure good title, would of necessity have to acquire the rights which the title owners of said real property had on the date when the railroad acquired its railroad title, since such property would revert to the heirs of such owners when the railroad ceased to use said land for railroad purposes. In addition, according to the terms of the contract, because steel and concrete piers and beams [188 N.Y.S.2d 439] could not be used to support the planned structures unless the construction thereof still permitted the running of the railroad freight trains over the railroad right of way, it became necessary that the Board of Standards and Appeals be brought into the picture. All of these complications made it evident at the very inception of the contract that it would be a long time before the contract provisions could be fully complied with by the prospective purchaser, plaintiff herein. By reason of all of these facts, the court cannot find at this time that the plaintiff has not been acting in good faith in attempting to complete its obligations under the contract. Accordingly, it is the court's opinion that the motion made by the plaintiff to amend should be and it is hereby granted as prayed for.
In view of this determination, defendant's motion to cancel the lis pendens pursuant to section 123, Civil Practice Act (Tishman v. Acritelli, 111 A.D. 237, 97 N.Y.S. 668; Mishkind-Feinberg Realty Co. v. Sidorsky, 115 A.D. 115, 100 N.Y.S. 714) is therefore ...