Congel v. Malfitano

• Decision Date: 24 May 2011
• Citation: 84 A.D.3d 1145,924 N.Y.S.2d 129,2011 N.Y. Slip Op. 04406
• Parties: Robert J. CONGEL, et al., respondents,v.Marc A. MALFITANO, appellant.
• Court: New York Supreme Court — Appellate Division

84 A.D.3d 1145

924 N.Y.S.2d 129

2011 N.Y. Slip Op. 04406

Robert J. CONGEL, et al., respondents,

v.Marc A. MALFITANO, appellant.

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

May 24, 2011.

Green & Seifter Attorneys, PLLC, Syracuse, N.Y. (James L. Sonneborn of counsel), for appellant.Corbally, Gartland and Rappleyea, LLP, Poughkeepsie, N.Y. (Vincent L. DeBiase and Goodwin Proctor, LLP [Anthony S. Fiotto and Jennifer L. Chunias], of counsel), for respondents.JOSEPH COVELLO, J.P., L. PRISCILLA HALL, PLUMMER E. LOTT, and JEFFREY A. COHEN, JJ.

In an action, inter alia, to recover damages for breach of contract and breach of fiduciary duty and for a judgment declaring that the defendant wrongfully dissolved a partnership, the defendant appeals (1), as limited by his brief, from so much of an order of the Supreme Court, Dutchess County (Pagones, J.), dated December 14, 2009, as granted the plaintiffs' motion for summary judgment dismissing his counterclaims, granted the plaintiffs' separate motion, among other things, for an expedited discovery schedule and a confidentiality order, in effect, denied his cross motion to compel discovery and for a limited order of confidentiality, and denied his separate cross motion, inter alia, for leave to amend his answer, (2) from an order of the same court, also dated December 14, 2009, which, upon so much of the first order dated December 14, 2009, as granted that branch of the plaintiffs' motion which was for an expedited discovery schedule, provided an expedited discovery schedule, (3) from an order of the same court dated January 11, 2010, which, upon so much of the first order dated December 14, 2009, as granted that branch of the plaintiffs' motion which was for a confidentiality order, provided a confidentiality order, and (4), as limited by his brief, from so much of an order of the same court entered March 17, 2010, as, upon renewal, adhered to the prior determination in the first order dated December 14, 2009, denying that branch of his cross motion which was for leave to amend his answer.

ORDERED that the appeal from so much of the first order dated December 14, 2009, as denied that branch of his cross motion which was for leave to amend his answer is dismissed, as that portion of the order was superseded by so much of the order entered March 17, 2010, as was made upon renewal; and it is further,

ORDERED that the first order dated December 14, 2009, is affirmed insofar as reviewed; and it is further,

ORDERED that the second order dated December 14, 2009, and the order dated January 11, 2010, are affirmed; and it is further,

ORDERED that the order entered March 17, 2010, is affirmed insofar as appealed from; and it is further,

ORDERED that one bill of costs is awarded to the plaintiffs.

Contrary to the defendant's contentions, the Supreme Court providently exercised its discretion in denying that branch of his cross motion which was for leave to amend his answer to assert counterclaims pursuant to Partnership Law §§ 73 and 74. Although leave to amend should be freely given in the absence of prejudice or surprise to the opposing party ( see CPLR 3025[b] ), the motion should be denied where the proposed amendment is palpably insufficient or patently devoid of merit ( see Brooks v. Robinson, 56 A.D.3d 406, 407, 867 N.Y.S.2d 133; Scofield v. DeGroodt, 54 A.D.3d 1017, 1018, 864 N.Y.S.2d 174; Lucido v. Mancuso, 49 A.D.3d 220, 227, 851 N.Y.S.2d 238). Here, the defendant's proposed amended counterclaims were patently devoid of merit.

CPLR 3101(a) provides for, inter alia, “full disclosure of all matter material and necessary in the prosecution...