[a] party may amend the party's pleading once as a matter of course at any time before a responsive pleading is served .... Otherwise a party may amend the party's pleadings only by leave of court or by written consent of the adverse party; and leave shall be freely given as justice so requires.
[i]t is not the Court's function to weigh the evidence that might be presented at a trial, the Court must merely determine whether the complaint itself is legally sufficient, see Goldman, 754 F.2d at 1067, and in doing so, it is well settled that the Court must accept the allegations of the complaint as true, see LaBounty v. Adler, 933 F.2d 121, 123 (2d Cir.1991); Procter & Gamble Co. v. Big Apple Indus. Bldgs., Inc., 879 F.2d 10, 14 (2d Cir.1989), cert. denied, 493 U.S. 1022 (1990), and construe all reasonable inferences in favor of the plaintiff. See, Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974); Bankers Trust Co. v. Rhoades, 859 F.2d 1096, 1099 (2d Cir.1988), cert. denied, 490 U.S. 1007 (1989).
On 11/08/2005 Investigator PIETZAK was present at the scene ... During the initial stages a refrigerator was recovered from the deck of the “Note Worthy” and placed on the east dock. Observations of the refrigerator revealed extensive and total damage to the unit. Also observed in some of the copper stranded wires of the unit were dish marks indicating that there was power to the unit at the time of the fire. Upon later investigation it was determined that the refrigerator was located at the front right side of the main cabin putting it away from the area of origin.
I am advised that although the owner states such videotapes exist, the system automatically records over the same tapes every 24 hours. Therefore, in response to petitioner's demand, the Marina is to produce such tapes if they exist, or, in the alternative, to provide an affidavit from a corporate representative with knowledge of this issue explaining the process and why the tapes are not available. Again, the Marina has two weeks to produce this information, or no later than April 23.
End of Document.