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IDX Capital, LLC v. Phoenix Partners Group LLC

NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT


April 27, 2010

IDX CAPITAL, LLC, ET AL., PLAINTIFFS-RESPONDENTS,
v.
PHOENIX PARTNERS GROUP LLC, DEFENDANT-APPELLANT,
PHOENIX PARTNERS GROUP LP, ET AL., DEFENDANTS.

Order, Supreme Court, New York County (Richard B. Lowe III, J.), entered December 2, 2008, which, to the extent appealable, granted plaintiffs' motion to further amend their pleadings and serve a second amended complaint, unanimously affirmed, with costs. Appeal from so much of that order as denied defendant Phoenix Partners Group LLC's cross motion to strike scandalous and prejudicial pleadings, unanimously dismissed, without costs.

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.

Gonzalez, P.J., Catterson, Moskowitz, Renwick, Richter, JJ.

102806/07

The court's acceptance of a motion made 10 days after the deadline it had set for submission was not an abuse of discretion, and was well within its continuing jurisdiction to reconsider any prior intermediate determination it has made (see Aridas v Caserta, 41 NY2d 1059, 1061 [1977]).

The court properly permitted plaintiffs to further amend the complaint in order to amplify their pleadings against defendants. To the extent the proposed amendment merely reflected new facts uncovered during discovery that were consistent with plaintiffs' existing theories sounding in tortious interference with contract and libel, it was not devoid of merit and would not result in significant prejudice or surprise (see Saldivar v I.J. White Corp., 9 AD3d 357, 359 [2004]). Nor, in the absence of prejudice, is plaintiffs' delay in seeking to amend a second time and to add additional defendants a sufficient reason to deny the amendment (Masterwear Corp. v Bernard, 3 AD3d 305, 306 [2004]; Sheppard v Blitman/Atlas Bldg. Corp., 288 AD2d 33, 34 [2001]).

Since the denial of a motion to strike allegations pursuant to CPLR 3024(b) is not appealable as of right, that portion of the appeal is dismissed (CPLR 5701[b][3]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

20100427

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