Civil Serv. Emps. Ass'n v. Cnty. of Nassau

• Decision Date: 30 November 2016
• Parties: CIVIL SERVICE EMPLOYEES ASSOCIATION, etc., et al., respondents, v. COUNTY OF NASSAU, appellant.
• Court: New York Supreme Court — Appellate Division

144 A.D.3d 1077
44 N.Y.S.3d 50
2016 N.Y. Slip Op. 08039

CIVIL SERVICE EMPLOYEES ASSOCIATION, etc., et al., respondents,
v.
COUNTY OF NASSAU, appellant.

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

Nov. 30, 2016.

44 N.Y.S.3d 51

Carnell T. Foskey, County Attorney, Mineola, N.Y. (Robert F. Van der Waag and Samantha Goetz of counsel), for appellant.

Louis D. Stober, Jr., LLC, Garden City, N.Y. (Albina Kataeva of counsel), for respondents.

REINALDO E. RIVERA, J.P., JOHN M. LEVENTHAL, SHERI S. ROMAN, and HECTOR D. LaSALLE, JJ.

144 A.D.3d 1077

In an action, inter alia, to recover damages for breach of a collective bargaining agreement, the defendant appeals from an order of the Supreme Court, Nassau County (Parga, J.), entered June 5, 2014, which granted the plaintiffs' motion for summary judgment on the complaint and denied its cross motion for summary judgment dismissing the complaint or, in the alternative, for leave to amend its answer to assert the statute of limitations as a defense and for summary judgment dismissing the complaint as time-barred.

ORDERED that the order is modified, on the law, by deleting the provision thereof granting the plaintiffs' motion for summary judgment on the complaint and substituting therefor a provision denying the motion; as so modified, the order is affirmed, with costs to the defendant.

The plaintiff Richard Kramer is a member of the plaintiff Civil Service Employees Association, A.F.S.C.M.E., Local 1000, A.F.L.-C.I.O., by its Local 830 (hereinafter the CSEA), and is employed by the defendant County of Nassau as a Civil Engineer II in the County's Department of Public Works. By summons and complaint filed June 27, 2008, the plaintiffs commenced

144 A.D.3d 1078

this action against the County alleging, inter alia, breach of contract. They alleged that the County violated Kramer's rights under a collective bargaining agreement (hereinafter the CBA) between the CSEA and the County when it promoted a less senior County employee, and not Kramer, to the position of Deputy Superintendent of Buildings in the Department of Public Works. In January 2014, after discovery had been completed, the matter had been certified ready for trial, and the note of issue filed, the plaintiffs moved for summary judgment on the complaint. The County cross-moved for summary judgment dismissing the complaint or, in the alternative, for leave to amend its answer to assert the statute of limitations as a defense and for summary judgment dismissing the complaint as time-barred. The Supreme Court denied the County's cross motion and granted the plaintiffs' motion for summary judgment on the complaint. The County appeals.

44 N.Y.S.3d 52

Contrary to the County's contention, the denial of that branch of its cross motion which was for leave to amend its answer to assert the statute of limitations as a defense and for summary judgment dismissing the complaint as time-barred was a provident exercise of the Supreme Court's discretion. " ‘In the absence of prejudice or surprise resulting directly from the delay in seeking leave, such applications are to be freely granted unless the proposed amendment is palpably insufficient or patently devoid of merit’ " (Calamari v. Panos, 131 A.D.3d 1088, 1089, 16 N.Y.S.3d 824, quoting Lucido v. Mancuso, 49 A.D.3d 220, 222, 851 N.Y.S.2d 238 ). " ‘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’ " (Krigsman v. Cyngiel, 130 A.D.3d 786, 786, 14 N.Y.S.3d 94, quoting Gitlin v. Chirinkin, 60 A.D.3d 901, 902, 875 N.Y.S.2d 585 ; see Murray v. City of New York, 43 N.Y.2d 400, 405, 401...