Motion Date: 7/1/11
Eileen, RANSTEN, J.
Defendant Dr. Tsai Chung Chao, MD d/b/a Naturo-Medical Health Care, P.C. ("Naturo-Medical" or "Defendant") moves for leave to amend its amended answer pursuant to CPLR 3025(b). Plaintiff Healthcare I.Q., LLC ("Healthcare" or "Plaintiff) opposes the motion.
Plaintiff entered into a practice management and licensing agreement with Defendant on or about February 1, 2007. Affirmation of Charles B. Manuel, Jr. in Opposition to Defendant's Motion for Leave to Amend ("Manuel Affirm."), ¶2.
On or about June 15, 2010, Plaintiff filed the instant complaint against Naturo-Medical. Manuel Affirm., ¶ 3. Plaintiff seeks damages for Defendant's alleged breach of contract. Plaintiffs Memorandum of Law in Opposition to Defendant's Second Motion for Leave to Amend the Answer ("PI. Mem."), p. 3. Defendant filed an answer on July 29, 2010, and an amended answer on August 18, 2010. Manuel Affirm., ¶¶ 4-5.
On January 14, 2011, Defendant filed a motion to amend the answer. Affirmation of Tristan C. Loanzon in Support of Defendant's Motion by Order to Show Cause for Leave to Amend ("Loanzon Affirm."), ¶ 3. Defendant sought to interpose counterclaims. Id. On May 26, 2011, this court denied without prejudice Defendant's motion for leave to amend. Manuel Affirm., Ex. 2 ("5/26/11 Order"). This court's 5/26/11 order stated, "The papers submitted by defendant did not include an affidavit of merit...." Id.
Defendant now moves again for leave to amend its amended answer. On June 14, 2011, Defendant filed a second motion for leave to amend the amended answer. Manuel Affirm., ¶ 8. Defendant included a proposed verified second amended answer. Loanzon Affirm., Ex. A ("Proposed Verified Second Answer"). Therein, Defendant asserts three counterclaims against Plaintiff: 1) breach of contract; 2) faithless servant; and 3) unjust enrichment. Id. Defendant's principal, Dr. Tsai Chung Chao, verified that the proposed second amended answer and counterclaims were "true to his own knowledge, except as to matters therein stated to be alleged on information and belief and as to those matters he believes it to be true." Id., p. 10. Defendant did not provide an affidavit of merit.
Plaintiff opposes the motion.
On or about September 12, 2011, Plaintiff filed a note of issue. See Document No. 29 filed on NYSEF on September 12, 2011.
Defendant argues that leave to amend its answer to assert counterclaims should be granted because this motion was not unduly delayed, not made in bad faith and Plaintiff will not be prejudiced by the new answer and counterclaims. Defendant's Memorandum of Law in Support of its Motion by Order to Show Cause for Leave to Amend the Complaint ("Def. Mem."), p. 1. Defendant argues that because Plaintiff filed a breach of contract claim, its own counterclaims asserting breach of contract, faithless servant and unjust enrichment are proper.
In opposition, Plaintiff argues that a motion for leave to amend must be supported by an affidavit of merit. PI. Mem., p. 4. Plaintiff contends that without such an affidavit of merit, which would provide some evidentiary ...