You might call this bootstrapping; Plaintiffs called it proper discovery.  Note that the claim was said to be late on earlier motions; now plaintiff gets to add claims for very old audits in this accounting malpractice action.

 In  Conway v Marcum & Kliegman LLP 2016 NY Slip Op 31933(U) October 11, 2016 Supreme Court, New York County Docket Number: 652236/2014  Judge Anil C. Singh notes the rules for amendment of a complaint.

“Under CPLR 3025, “[m]otions for leave to amend pleadings should be freely granted, absent prejudice or surprise resulting therefrom.” MBIA Ins. Corp. v. Greystone & Co., Inc., 74 A.D.3d 499, 500 (1st Dept 2010). While plaintiffs are not required to, establish the merits of proposed new allegations, the proposed amendments must not be “palpably insufficient or patently devoid of merit” Id. “A party opposing leave to amend must overcome a heavy presumption of validity in favor of peJ.’.mitting amendment.” McGhee v. Odell, 96 A.D.3d 449, 450 (1st Dept 2012) (internal quotations omitted}. Plaintiffs’ proposed amendments are not palpably insufficient or clearly devoid of merit. See Pier 59 Studios L.P. v. Chelsea Piers L.P., 40 A.D.3d 363, 366 (1st Dept 2007) (“Once a prima facie basis for the amendment has been established, ; that should end the inquiry.”) (citation omitted). The proposed amendments were ‘ supported by a sufficient showing of merit through the submission of an affirmation by counsel,· a redline of the proposed changes to the complaint, along with relevant ‘ documents including invoices produced by the Defendants related to the 2009 and 2010 audits’. In fact, Defendants do not contend, in their reply, that the proposed amendments are without merit.

Defendants contend that Plaintiffs motion should be denied because of undue delay. Defendants contend thatPlaintiffs should have brought this case in 2012, or even as early as 2011. However, this Court and the First Department have held that the original complaint was filed in a timely manner when this action was commenced in July 2014. Stokoe v. Marcum & Kliegman LLP, No. 6552236/2014, 2015 WL 1306995, at *5 (Sup. Ct. N.Y. Cty. Mar. 16, 2015), affd, 135 A.D.3d 645 (1st Dept 2016). Plaintiffs’ contend that the new information in the amended complaint relates to allegations concerning the 2009 and 2010 audits, which they assert they became aware of in February 2016. See AC i-fi-f 129-30, 151, 168, 217-18, 224-49 (new allegations concerning 2009 and 2010 Audits); Gross Reply Aff. i-fi-f 12-13; see also Gross Moving Aff., Exh. Z.”

“Consequently, Plaintiffs’ proposed amendments are not palpably insufficient nor do they impose undue prejudice or surprise. “