The New York Appellate Division for the Second Judicial Department affirmed

The plaintiffs, Kevin Askari and Sina Drug Corp. (hereinafter Sina), commenced this action for replevin in 2015, seeking to direct the defendant McDermott, Will & Emery, LLP (hereinafter the LLP), to deliver its files to the plaintiffs relating to restructuring transactions in which the LLP acted as counsel and the defendant Oncomed Specialty, LLC (hereinafter Specialty), was the surviving post-merger corporate entity. In an order entered May 3, 2016, the Supreme Court, inter alia, granted the separate cross-motions of the LLP and Specialty for summary judgment dismissing the complaint insofar as asserted against each of them, and this Court reversed that order on appeal (see Askari v McDermott, Will & Emery, LLP, 179 AD3d 127).

In May 2021, the plaintiffs moved pursuant to CPLR 3025(b) for leave to serve a supplemental and amended complaint, seeking, among other things, to assert a cause of action sounding in breach of fiduciary duty and conversion and requesting attorneys’ fees as compensatory damages, as well as punitive damages. By order dated December 3, 2021, the Supreme Court, inter alia, denied the plaintiffs’ motion. The plaintiffs appeal.

“Leave to amend pleadings under CPLR 3025(b) should be freely granted unless the proposed amendment would unfairly prejudice or surprise the opposing party, or is palpably insufficient or patently devoid of merit” (Cirillo v Lang, 206 AD3d 611, 612). “A determination whether to grant such leave is within the Supreme Court’s broad discretion, and the exercise of that discretion will not be lightly disturbed” (Civil Serv. Empls. Assn. v County of Nassau, 144 AD3d 1075, 1076 [internal quotation marks omitted]). “‘In exercising its discretion, the court should consider how long the party seeking the amendment was aware of the facts upon which the motion was predicated [and] whether a reasonable excuse for the delay was offered’” (Yong Soon Oh v Hua Jin, 124 AD3d 639, 640, quoting Cohen v Ho, 38 AD3d 705, 706).

Here, the plaintiffs failed to provide a reasonable excuse for their delay of nearly 6 years after the complaint was filed and 18 months after the order entered May 3, 2016, was reversed by this Court in moving for leave to serve a supplemental and amended complaint (see Ofman v Bluestone, 227 AD3d 822, 824).

Furthermore, the proposed amendment is palpably insufficient to demonstrate that the plaintiffs are entitled to an award of attorneys’ fees in the absence of any agreement between the parties, statute, or court rule, and where the plaintiffs were not involved in an earlier litigation with a third party (see Hunt v Sharp, 85 NY2d 883, 885-886; Carlson v Colangelo, 221 AD3d 773, 775-776, lv granted 41 NY3d 908). The plaintiffs’ allegations regarding their claim for punitive damages are also palpably insufficient to demonstrate that the defendants’ conduct evinced a high degree of moral culpability or constituted willful or wanton negligence or recklessness (see Buccigrossi v Glatman, 214 AD3d 696, 696-697).

Accordingly, the Supreme Court providently exercised its discretion in denying the plaintiffs’ motion pursuant to CPLR 3025(b) for leave serve a supplemental and amended complaint (see Civil Serv. Empls. Assn. v County of Nassau, 144 AD3d at 1076).

The court further affirmed the dismissal of a legal malpractice claim

Between 2013 and 2014, the defendant McDermott Will & Emery, LLP (hereinafter the LLP), a law firm, provided legal services in connection with, inter alia, the restructuring of the plaintiff Sina Drug Corp. (hereinafter Sina), of which the plaintiff Kaveh Askari was the former president and controlling shareholder. This restructuring involved the creation of the plaintiffs Onco360 Holdings 1, Inc., Onco360 Holdings 2, Inc., and Onco360 Holdings 3, Inc., as well as a postmerger entity named Oncomed Specialty, LLC (hereinafter Specialty). In October 2015, Askari and Sina commenced an action for replevin against the LLP and Specialty, alleging that Askari and Sina were entitled to possession of the LLP’s files related to the restructuring transactions (hereinafter the 2015 replevin action). In an order entered May 3, 2016, the Supreme Court in the 2015 replevin action denied the motion of Askari and Sina for summary judgment on the complaint and granted the separate cross-motions of the LLP and Specialty for summary judgment dismissing the complaint insofar as asserted against each of them. In an opinion and order dated November 27, 2019, this Court reversed the order entered May 3, 2016 (see Askari v McDermott, Will & Emery, LLP, 179 AD3d 127).

In 2020, the plaintiffs commenced this action, among other things, to recover damages for legal malpractice arising out of the representation provided by the LLP and the defendants Robert H. Cohen and Kristian A. Werling, in connection with the restructuring transactions. The defendants moved pursuant to CPLR 3211(a) to dismiss the amended complaint. The plaintiffs opposed the motion and cross-moved, among other things, for leave to serve and file a second amended complaint. By order entered May 14, 2021, the Supreme Court granted the defendants’ motion and denied the plaintiffs’ cross-motion. On June 1, 2021, a judgment was entered, upon the order, in favor of the defendants and against the plaintiffs dismissing the amended complaint. The plaintiffs appeal.

Merits

In opposition, the plaintiffs failed to raise a question of fact as to whether the statute of limitations was tolled or otherwise inapplicable or whether the plaintiffs actually commenced the action within the applicable limitations period (see Williams v New York City Health & Hosps. Corp., 84 AD3d 1358). Contrary to the plaintiffs’ contention, the defendants are not judicially estopped from asserting a statute of limitations defense, as the defendants did not receive a favorable result in the 2015 replevin action by taking a position contrary to one they are taking in this action May 14, 2025 (see Huizhi Liu v Guoging Guan, 225 AD3d 749, 751-752; Dime Sav. Bank of Williamsburg v 146 Ross Realty, LLC, 106 AD3d 863, 864).

Further, contrary to the plaintiffs’ contention, the statute of limitations was not equitably tolled. The record is devoid of allegations or evidence that the plaintiffs were induced to delay the commencement of this action or prevented from exercising any legal remedy as a result of any affirmative misconduct on the part of the defendants (see Shared Communications Servs. of ESR, Inc. v Goldman, Sachs & Co., 38 AD3d 325, 325-326; Dioguardi v Glassey, 5 AD3d 430)

(Mike Frisch)