The City of New York waited too long to try to amend its third-party complaint.  The Court found that the City knew all the facts upon which the new complaint might be based and after 26 depositions or so, its just too late.

Commodore Constr. Corp. v City of New York  2019 NY Slip Op 31316(U)  May 8, 2019
Supreme Court, New York County  Docket Number: 651969/2015  Judge: Andrew Borrok reminds that while freely given, amendment may not cause prejudice.

“Leave to amend under CPLR § 3025 (b) is committed to the sound discretion of the trial court
(Colon v Citicorp Inv. Servs., 283 AD2d 193, 193 [1st Dept 2001], citing Edenwald Contr. Co. v
New York, 60 NY2d 957, 959 [1983]). Leave to amend pleadings should be freely given unless
there is prejudice or surprise resulting from the delay to the opposing party or if the proposed
amendment is “palpably improper or insufficient as a matter of law” (McGhee v Odell, 96 AD3d
449, 450 [1st Dept 2012])

In this case, the City proposes to amend its complaint nearly four years after filing this lawsuit,
following 28 party depositions after extensive document discovery which extensive document
discovery followed pre-litigation and mediation (NYSCEF Doc. No. 241, iii! 3-13). At this late
stage in the litigation, when discovery is nearly completed, amendment of the City’s complaint to
bring direct claims against the third-party defendants would be highly prejudicial.”

“In any event, the City’s proposed claims for professional malpractice and negligent misrepresentation are devoid of merit as there is no privity between the City and the third-party defendants (see Greenstreet of NY, Inc. v Davis, 166 AD3d 470 [1st Dept 2018]). In addition, the allegations in support of the additional claims for negligent misrepresentation and malpractice are entirely conclusory and insufficient. In fact, the negligent misrepresentation does not even allege a single misrepresentation. Finally, Pier 59 Studios, L.P. v Chelsea Piers, L.P., which is cited by the City on reply, is inapposite as, in that case, the proposed amendment was based on newly discovered evidence, which is not the case here (40 AD3d 363 [1st Dept 2007]).”