Ferriola v. Dimarzio

• Decision Date: 05 April 2011
• Citation: 2011 N.Y. Slip Op. 02841,919 N.Y.S.2d 871,83 A.D.3d 657
• Parties: Jeannine FERRIOLA, et al., respondents,v.Peter DiMARZIO, et al., defendants, Charles Barresi, appellant.
• Court: New York Supreme Court — Appellate Division

83 A.D.3d 657
919 N.Y.S.2d 871
2011 N.Y. Slip Op. 02841

Jeannine FERRIOLA, et al., respondents,
v.
Peter DiMARZIO, et al., defendants, Charles Barresi, appellant.

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

April 5, 2011.

L'Abbate, Balkan, Colavita & Contini, LLP, Garden City, N.Y. (Lee J. Sacket of counsel), for appellant.

[919 N.Y.S.2d 872]

Caruso, Caruso & Branda, P.C., Brooklyn, N.Y. (Grace M. Borrino of counsel), for respondents.

[83 A.D.3d 657] In an action, inter alia, to recover damages for breach of contract and negligence, the defendant Charles Barresi appeals, as limited by his brief, from so much of an order of the Supreme Court, Kings County (Silber, J.), dated August 19, 2010, as denied his motion for leave to amend his answer to add the affirmative defense that the amended complaint fails to name necessary and indispensable parties.

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

In the absence of significant prejudice or surprise to the opposing party, leave to amend a pleading should be freely given ( see CPLR 3025[b]; Edenwald Contr. Co. v. City of New York, 60 N.Y.2d 957, 959, 471 N.Y.S.2d 55, 459 N.E.2d 164) unless the proposed amendment is palpably insufficient or patently devoid of merit ( see Bernardi v. Spyratos, 79 A.D.3d 684, 688, 912 N.Y.S.2d 627; Malanga v. Chamberlain, 71 A.D.3d 644, 646, 896 N.Y.S.2d 385; Unger v. Leviton, 25 A.D.3d 689, 690, 811 N.Y.S.2d 691). The appellant's proposed amendment to his answer, in which he seeks to add the affirmative defense that the amended [83 A.D.3d 658] complaint fails to name necessary and indispensable parties, was palpably insufficient and patently devoid of merit. The appellant failed to establish that the nonparties Delidakis Construction Co., Inc., and Donna Freedhand Design were anything more than joint tortfeasors. Since joint tortfeasors are not necessary parties ( see CPLR 1001[a]; Hecht v. City of New York, 60 N.Y.2d 57, 62, 467 N.Y.S.2d 187, 454 N.E.2d 527; Peak v. Bartlett, Pontiff, Stewart & Rhodes, P.C., 28 A.D.3d 1028, 1030, 814 N.Y.S.2d 763; Amsellem v. Host Marriott Corp., 280 A.D.2d 357, 359, 721 N.Y.S.2d 318; Wolstencroft v. Sassower, 124 A.D.2d 582, 507 N.Y.S.2d 728; Siskind v. Levy, 13 A.D.2d 538, 539, 213 N.Y.S.2d 379), the proposed affirmative defense was palpably insufficient and patently devoid of merit. Accordingly, the Supreme Court providently exercised its discretion in denying the appellant's motion for...