Plaintiff buys a house which it says was illegally constructed, and further says that since the seller worked for Oyster Bay, the town overlooked illegal construction and gave a Certificate of Occupancy.  This action, JULIE LAMOTHE and JUSTIN LAMOTHE, Plaintiffs, -against- THE TOWN OF OYSTER BAY, THE TOWN OF OYSTER BAY DEPARTMENT OF PLANNING AND DEVELOPMENT, et al, 08-cv-2078 (ADS)(AKT);UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NEW YORK;2011 U.S. Dist. LEXIS 120843;October 19, 2011, then went the way so many cases do.  Plaintiffs and attorneys parted ways, second attorney came on board, and then left, and plaintiffs now proceed pro se.  They ask to amend the scheduling order.  They say that vital allegations and evidence were overlooked by their first attorney.  May they amend?

"On May 21, 2008, Plaintiffs Julie Lamothe and Justin Lamothe ("the Plaintiffs") commenced this action against the Town of Oyster Bay (the "Town"), the Town’s Department of Planning and Development, and several municipal employees (collectively the "municipal defendants"), as well as against individual Defendants Vincent Acquilino and Diane Aquilino, seeking damages associated with defects in a home purchased in 2005. Following this Court’s dismissal of all claims against the Aquilinos and certain claims against the municipal defendants, the only viable claims that remain against the municipal defendants are for deprivation of the Plaintiffs’ constitutional [*2] rights to equal protection of the laws and substantive due process, pursuant to 42 U.S.C. § 1983, and aiding and abetting those violations. Presently before the Court is the Plaintiffs’ motion to amend their complaint to assert: (1) certain additional facts that they claim their two prior counsels failed to present to the Court in the initial complaint; and (2) a number of new causes of action against the remaining Defendants, mainly grounded in fraud and negligence, that are related to the same underlying events as the initial complaint. For the reasons set forth below, the Court denies the Plaintiffs’ motion."

"The Defendants oppose the Plaintiffs’ motion to amend on the grounds that the amendment is futile; that the motion is untimely; that it will result in undue delay; and that it will cause the Defendants undue prejudice. At its core, the Defendants’ argument, as stated in their joint opposition to Plaintiffs’ motion to amend their complaint dated August 9, 2011, is that the Plaintiffs are utilizing Federal Rule of Civil Procedure 15 in an attempt "to start the case over" as pro se litigants. (Docket Entry No. 103.) With regard to whether an amendment would be futile, the Defendants contend that the proposed amendments merely seek to resurrect and add volume to claims that were dismissed by this Court more than two years ago. As to untimeliness, the Defendants maintain that the Plaintiffs have waited too long to move to amend. They point out that discovery in this matter closed on November 9, 2009, after two prior extensions by United States Magistrate A. Kathleen Tomlinson at the Plaintiffs’ request. In addition, the Defendants emphasize that the case is already at the summary judgment stage, as Rule 56.1 [*14] Statements have been exchanged.

With regard to undue prejudice, the Defendants assert that granting the Plaintiffs leave to amend their complaint would require that discovery be reopened, because the entire course of discovery was geared towards only the Section 1983 claims that remained after the early dismissal of the other causes. Finally, the Defendants claim that any additional discovery, along with the ensuing delay in the case that would result, would be unfair because the case is more than three years old and summary judgment procedures have already been initiated.

In response, the Plaintiffs note that the reason why these claims were not previously filed is because of the alleged inadequacies of their first counsel—against whom they now have a malpractice suit—and the similar alleged inadequacies of their successor counsel. The Plaintiffs do not speak directly to the potential unfair prejudice to the Defendants that may result from the amendment. Instead, the Plaintiffs emphasize in their response to the Defendants’ Opposition to amend the complaint dated August 15, 2011, that their purpose for filing this amended complaint is "to start this case over from the beginning" and [*15] "to correct what went miserably wrong." (Docket Entry No. 106.)"