Alrose Oceanside, LLC v. Mueller

• Decision Date: 01 February 2011
• Citation: 81 A.D.3d 574,915 N.Y.S.2d 643
• Parties: ALROSE OCEANSIDE, LLC, appellant, et al., plaintiff, v. Ryan MUELLER, etc., et al., respondents, et al., defendants.
• Court: New York Supreme Court — Appellate Division

915 N.Y.S.2d 643

81 A.D.3d 574

ALROSE OCEANSIDE, LLC, appellant, et al., plaintiff,

v.Ryan MUELLER, etc., et al., respondents, et al., defendants.

Supreme Court, Appellate Division, Second Department, New York.

Feb. 1, 2011.

Gennet, Kallmann, Antin & Robinson, P.C., New York, N.Y. (Michael S. Leavy of counsel), for appellant.

Nicolini, Paradise, Ferretti & Sabella, PLLC, Mineola, N.Y. (John J. Nicolini of counsel), for respondents.

ANITA R. FLORIO, J.P., RANDALL T. ENG, ARIEL E. BELEN, and LEONARD B. AUSTIN, JJ.

In an action to recover damages for injury to property, the plaintiff Alrose Oceanside, LLC, appeals, as limited by its notice of appeal and brief and the parties' stipulation, from so much of an order of the Supreme Court, Nassau County (Diamond, J.), entered November 9, 2009, as granted that branch of the motion of the infant defendant Michael Baumann, by his guardians Michael Baumann and Donna Baumann, Michael Baumann, individually, and Donna Baumann, individually, which was for summary judgment dismissing thecomplaint insofar as asserted against the infant defendant Michael Baumann, and denied those branches of its motion which were for leave to amend the complaint to add a cause of action asserted on behalf of the plaintiff Alrose Oceanside, LLC, alleging that the infant defendant Michael Baumann acted in concert with two other individuals, and for summary judgment in its favor on the issue of liability insofar as asserted against the infant defendant Michael Baumann.

ORDERED that the order is affirmed insofar as appealed from, with costs.

Contrary to the contentions of the plaintiff Alrose Oceanside, LLC (hereinafter Alrose), the Supreme Court properly granted that branch of the motion of the infant defendant Michael Baumann (hereinafter the infant defendant) and his parents Michael Baumann and Donna Baumann (hereinafter collectively the Baumann defendants) which was for summary judgmentdismissing the complaint insofar as asserted against the infant defendant. The Baumann defendants established their prima facie entitlement to summary judgment dismissing the complaint insofar as asserted against the infant defendant, and in opposition, Alrose failed to raise a triable issue of fact ( see Zuckerman v. City of New York, 49 N.Y.2d 557, 427 N.Y.S.2d 595, 404 N.E.2d 718).

Additionally, the Supreme Court providently exercised its discretion in denying that branch of the plaintiffs' motion which was for leave to amend the complaint to add a cause of action on behalf of Alrose based on concerted action liability insofar as asserted against the infant defendant. "Although leave to amend a pleading 'shall be freely given' in the absence of surprise or prejudice, the determination whether to grant such leave is within the court's discretion, and the exercise of that discretion will not be lightly disturbed" ( Comsewogue Union Free School Dist. v. Allied-Trent Roofing Sys., Inc., 15 A.D.3d 523, 524, 790 N.Y.S.2d 220, quoting CPLR 3025 [b]; see Fischer v. RWSP Realty, LLC, 53 A.D.3d 595, 596, 862 N.Y.S.2d 539). "[W]here the application for leave to...