16-CIV-00175 JOSPEH GIARRUSSO, et al. vs. ESTATE OF DOROTHY

DIEGELMAN, et al.

JOSEPH GIARRUSOO JOSHUA HENDERSON

ESTATE OF DOROTHY DIEGELMAN

PLAINTIFF’S MOTION FOR LEAVE TO FILE FIRST AMENDED COMPLAINT

· HEARING REQUIRED. COUNSEL TO PERSONALLY APPEAR. NO TELEPHONIC APPEARANCES. NO “COVERING COUNSEL”.

· The Court notes that this is a personal injury action arising from an automobile collision with a very young child on a driveway in 2003, over 14 years ago. Plaintiff now moves to add a premises liability claim based upon evidence that overgrown vegetation that obscured the child, due to lack of prudent maintenance of shrubs along the driveway, was a contributing or proximate cause of the accident.

· Counsel to be prepared to address the following issues:

(1) Why should the Court not consider this proposed Amendment to be an entirely new claim that, as a practical matter, presents undue prejudice to the Defendant Diegelman Estate given (a) the fact that this case has been on file for a year and nine months, (b) trial is set for August 17th, leaving a relatively short time for likely pretrial investigation, law & motion as to the anticipated time-bar and/or laches issues, and claims evaluation by the insurer who is on risk for the alleged premises liability claim?

(2) Should the matter of adding a premises liability claim at this late date be better left to the trial judge to consider whether or not, on a full evidentiary record, Plaintiff should have leave to amend the pleadings to conform to proof based on the actual evidence?

(3) What weight should this Court give the apparent delay arising from Defendant’s own non-disclosure of the pertinent homeowner’s policy? I.e., since Defendant withheld information about the applicable homeowner’s insurance, don’t the equities favor allowing the proposed pleading Amendment?

(4) In the potential time-bar a subject properly before the Court when considering to allow or not this proposed pleading Amendment? Isn’t that a subject more properly taken up on a responsive pleading motion or judgment on the pleadings once the affirmative defense is raised in an Answer? I.e., is it premature for the Court to consider that issue now in the face of the liberal policy that favors allowing pleading amendments where trial is still five months away?