Favia v. Harley-Davidson Motor Co.

• Decision Date: 23 July 2014
• Citation: Favia v. Harley-Davidson Motor Co., 2014 NY Slip Op 5408, 119 A.D.3d 836, 990 N.Y.S.2d 540 (N.Y. App. Div. 2014)
• Court: New York Supreme Court — Appellate Division
• Parties: Anthony FAVIA, appellant, v. HARLEY–DAVIDSON MOTOR COMPANY, INC., et al., respondents, et al., defendants.

119 A.D.3d 836

990 N.Y.S.2d 540

2014 N.Y. Slip Op. 05408

Anthony FAVIA, appellant,

v.HARLEY–DAVIDSON MOTOR COMPANY, INC., et al., respondents, et al., defendants.

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

July 23, 2014.

Edward F. Westfield, P.C., Riverdale, N.Y., for appellant.

Eckert Seamans Cherin & Mellott, LLC, White Plains, N.Y. (Matthew T. Fairley of counsel), for respondents.

MARK C. DILLON, J.P., PLUMMER E. LOTT, LEONARD B. AUSTIN, and BETSY BARROS, JJ.

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Orange County (Slobod, J.), dated December 11, 2013, which denied his motion pursuant to CPLR 3025(b) for leave to serve a second amended complaint to add a cause of action to recover damages for negligence per se and a claim for punitive damages.

ORDERED that the order is reversed, on the law and in the exercise of discretion, with costs, and the plaintiff's motion for leave to serve a second amended complaint is granted.

“Applications for leave to amend pleadings under CPLR 3025(b) should be freely granted unless the proposed amendment (1) would unfairly prejudice or surprise the opposing party, or (2) is palpably insufficient or patently devoid of merit” ( Maldonado v. Newport Gardens, Inc., 91 A.D.3d 731, 731–732, 937 N.Y.S.2d 260;see Longo v. Long Is. R.R., 116 A.D.3d 676, 983 N.Y.S.2d 579;United Fairness, Inc. v. Town of Woodbury, 113 A.D.3d 754, 755, 979 N.Y.S.2d 365;Faiella v. Tysens Park Apts., LLC, 110 A.D.3d 1028, 1029, 975 N.Y.S.2d 71).

“No evidentiary showing of merit is required under CPLR 3025(b)” ( Lucido v. Mancuso, 49 A.D.3d 220, 229, 851 N.Y.S.2d 238). “The court need only determine whether the proposed amendment is ‘palpably insufficient’ to state a cause of action or defense, or is patently devoid of merit” ( id.). “[A] court shall not examine the legal sufficiency or merits of a pleading unless such insufficiency or lack of merit is clear and free from doubt” ( United Fairness, Inc. v. Town of Woodbury, 113 A.D.3d at 755, 979 N.Y.S.2d 365).

Here, the defendants did not allege that the proposed amended pleading would result in any prejudice or surprise. Indeed, the plaintiff's motion was made prior to the filing of the note of issue, and was predicated on information supplied by the defendants during disclosure. Further, the proposed amended pleading was not palpably insufficient or patently devoid of merit. Moreover, the...