A New York appeals court has stopped residential tenants from adding more than $321,000 in claimed damage to their personal belongings to a long-running lawsuit over damp and mould. The court pointed to years of unexplained delays, missing receipts and serious unfairness to their former landlord. In a decision issued on 28 October 2026, the Supreme Court of the State of New York, Appellate Division, Second Judicial Department, unanimously overturned an earlier ruling that had allowed the tenants to add the large financial claim. The ruling in Dostana Ljusic v Kathleen M. Rodgers Petit rejected an attempt by tenants Dostana Ljusic and her co-plaintiffs to add a claim of $321,728.79 for household items they said were ruined. The original lawsuit was filed in August 2018.
Initial claims and missing proof
The legal case began eight years ago when the tenants sued their former landlord, Kathleen M. Rodgers Petit. They claimed that mould exposure at a rental property in Orange County, New York, had caused health problems and made the home unsuitable to live in. According to court records published by the New York State Law Reporting Bureau, the tenants submitted a formal bill of particulars in May 2020. It listed physical injuries they said were caused by mould. However, it did not mention any damaged personal belongings or provide estimates of their value. The issue of damaged possessions first came up in April 2022. During a legal deposition, Ljusic testified that several household items had been thrown away because of mould contamination. After this testimony, the landlord’s lawyers formally asked the tenants to provide a detailed list of the discarded items. They also requested shop receipts or other proof of purchase for replacement goods. Instead of providing receipts or invoices, the tenants submitted a one-page summary in October 2022 claiming $70,500 in property damage. Eight months later, in June 2023, they submitted another one-page summary. This time, the claimed amount had increased sharply to $321,728.79. Official records from the Appellate Division show that neither summary included supporting documents, receipts or records showing how the items had been valued.
Procedural battles and trial court reversal
After the plaintiffs filed a note of issue in October 2023, formally confirming that the pre-trial evidence-gathering process was complete, they tried to add the property damage claim through an additional filing. The landlord quickly asked the court to remove the late claim. In April 2024, the Supreme Court of Orange County agreed and granted the landlord’s request to strike the property damage claim. The tenants then filed a formal motion in April 2024 under Section 3025(b) of New York’s Civil Practice Law and Rules. They asked the court for permission to change their original complaint and include the property damage claim. The landlord’s lawyers opposed the request. They argued that adding hundreds of thousands of dollars in property damage years after the evidence-gathering process had ended would put the landlord at an unfair disadvantage. They also argued that the claim was blocked by the legal rule known as laches, which prevents people from making legal claims after unreasonable delays. Despite these objections, Supreme Court Justice David J. Squirrell allowed the tenants to change their complaint in an order dated 25 September 2024. The landlord then immediately appealed the decision to the Second Department.
Appellate court finds severe prejudice
In a decision written for the four-judge appeals panel, Justices Valerie Brathwaite Nelson, Paul Wooten, Laurence L. Love and James P. McCormack ruled that the lower court had made a legal error by allowing the late change. Under New York’s civil procedure rules, courts generally allow parties to change their legal complaints freely. However, permission can be denied when the changes cause unfair surprise or harm to the other side. The judges stressed that long delays combined with serious harm to the defence can prevent such changes. “Here, the defendant demonstrated significant prejudice as the plaintiffs’ proposed amended complaint was a significant expansion of their claims, was sought after the parties had completed discovery, and was asserted without supporting documentation,” the panel wrote in its unanimous decision. The judges also pointed out that the tenants had not given a convincing reason for waiting more than five years after filing their original lawsuit to add the claim. They noted that the tenants had known about the condition of their belongings well before they brought the case. “Moreover, the plaintiffs failed to offer a reasonable excuse for their delay of more than five years in seeking leave to amend the complaint, despite knowing the facts regarding their claim of injury to property for three years prior to the commencement of this action,” the decision stated.
Strict limits on late lawsuit changes
The appeals court’s decision supports long-standing New York legal rules that prevent people from adding large financial claims without proof late in a lawsuit, especially after the formal evidence-gathering stage has ended. By rejecting the tenants’ request and awarding legal costs to the landlord, the Second Department removed the entire $321,728.79 property damage claim from the ongoing case. The lawsuit will now return to the Supreme Court in Orange County. The case will continue, but only with the original claims involving personal injuries and breaches of the landlord’s duty to provide a safe and suitable home.
