The following papers numbered 1 to 9 were read on these motions:

Defendants DTS Provident Design Engineering, LLP f/k/a Divney Tung Schwalbe LLP ("DTS") and Wesley Stout Associates, LLC ("Wesley Stout") (collectively, "movants") bring their Motions seeking to amend their answers to add counterclaims against plaintiff for the first time.^[FN1] Both defendants state that the reason that they seek to add their counterclaims is that in a [*2]related proceeding, Hudson Meridian Construction Group, LLC v. OPRA III, LLC, Index No. 58815/2023, plaintiff filed counterclaims against Hudson Meridian Construction Group, LLC ("Hudson Meridian"), alleging that Hudson Meridian grossly mismanaged the project at issue in all of these related actions. Movants contend that because plaintiff's claims against movants arise out of the gross negligence of Hudson Meridian, plaintiff has a contractual duty to defend, indemnify, and hold them harmless from such claims. In other words, movants assert that any claims against them are really claims against Hudson Meridian or others ("plaintiff's claimed damages are the result of plaintiff's contractors'/other design professionals' negligence (not any negligence on the part of WSA), triggering the enforceable indemnification provision found in the Contract.").

It has long been settled that "In the absence of prejudice or surprise to the opposing party, a motion to amend should be granted unless the proposed amendment is palpably insufficient or patently devoid of merit." Kennedy v. Bracey, 219 AD3d 889, 890, 195 N.Y.S.3d 293, 294 (2d Dept. 2023). "A party may amend his or her pleading at any time by leave of court . . . . CPLR 3025(b) provides that leave to amend a pleading shall be freely given." Matter of Chustckie, 203 AD3d 820, 165 N.Y.S.3d 93, 95 (2d Dept. 2022). "The burden of demonstrating prejudice or surprise, or that a proposed amendment is palpably insufficient or patently devoid of merit, falls upon the party opposing the motion." Wilmington Sav. Fund Soc'y, FSB v. Sotomayor, 222 AD3d 702, 202 N.Y.S.3d 193, 195 (2d Dept. 2023). This means that plaintiff has the burden in opposing these motions.

The Second Department has explained that prejudice "requires a showing that the party has been hindered in the preparation of its case or has been prevented from taking some measure in support of its position." Redd v. Vill. of Freeport, 150 AD3d 780, 781, 53 N.Y.S.3d 692, 693 (2d Dept. 2017). See also Deutsche Bank Nat'l Tr. Co. v. Groder, 218 AD3d 542, 545, 192 N.Y.S.3d 563, 566 (2d Dept. 2023); Garafola v. Wing Inc., 139 AD3d 793, 794, 33 N.Y.S.3d 287, 288—89 (2d Dept. 2016) ("asserted prejudice must be more than the mere exposure of the opponent to greater liability and must indicate that the opponent has been hindered in the preparation of its case or has been prevented from taking some measure in support of its position."). In this case, a review of plaintiff's opposition papers shows that plaintiff does not allege that it will suffer any prejudice or surprise. Indeed, plaintiff only mentions these concepts when it discusses the standard that the Court must follow. It thus appears that plaintiff admits that there is no prejudice.

With respect to the merits of the proposed amendment, the Second Department has explained that "No evidentiary showing of merit is required under CPLR 3025(b). A court shall not examine the legal sufficiency or merits of a pleading unless such insufficiency or lack of merit is clear and free from doubt." Chang v. Chang, 221 AD3d 634, 637, 199 N.Y.S.3d 582, 585 (2d Dept. 2023) (Emphasis in original). In this case, plaintiff contends that because the indemnification provisions are only included in Terms and Conditions, not the form contract, [*3]they should be ignored ("While attached to the DTS Agreement, the Terms and Conditions of the Proposal are an inconsistency with the DTS Agreement and are therefore not controlling."). The Court rejects this argument, as it is not an inconsistency but a supplementation. There does not appear to be any basis to find — at least on this motion — that the Terms and Conditions are not incorporated into the contracts.

Next, plaintiff asserts that in the counterclaims, movants are seeking to have plaintiff indemnify them for their own negligence ("DTS seeks indemnification from Plaintiff for the very acts, errors and omissions that DTS is responsible for."). Movants disagree, essentially conceding that if the Court finds that they are negligent, there will be no indemnification, but if they are not negligent, then plaintiff must indemnify them. As there has not been any such finding of negligence against any party in any litigation, the Court rejects this argument.

Accordingly, the Court finds that plaintiff failed to meet its burden of demonstrating that the proposed amendments are "palpably insufficient or patently devoid of merit." Choudhari v. Choudhari, 220 AD3d 835, 838, 199 N.Y.S.3d 75, 78 (2d Dept. 2023). The motions are granted in their entirety. The amended answers are deemed filed as of the date of receipt of this Decision and Order.

The foregoing constitutes the decision and order of the Court.^[FN2]