Jenal v. Brown
| Decision Date | 25 January 2011 |
| Citation | 80 A.D.3d 727,916 N.Y.S.2d 780 |
| Parties | Joan JENAL, et al., respondents, v. Scott BROWN, et al., defendants; Town of Babylon, nonparty-appellant. |
| Court | New York Supreme Court — Appellate Division |
Morici & Morici, LLP, Garden City, N.Y. (Janice M. Hansen of counsel), for respondents.
In an action to recover damages for personal injuries, etc., nonparty Town of Babylon appeals from an order of the Supreme Court, Nassau County (Woodard, J.), dated June 10,2010, which granted the plaintiffs' motion for leave to serve an amended complaint adding it as a defendant.
ORDERED that the order is reversed, on the law, with costs, and the plaintiffs' motion for leave to serve an amended complaint adding the Town of Babylon as a defendant is denied.
While leave to serve an amended pleading should be freely given upon such terms as are just ( see CPLR 3025[b]; Edenwald Contr. Co. v. City of New York, 60 N.Y.2d 957, 471 N.Y.S.2d 55, 459 N.E.2d 164; AYW Networks v. Teleport Communications Group, 309 A.D.2d 724, 765 N.Y.S.2d 379; Charleson v. City of Long Beach, 297 A.D.2d 777, 747 N.Y.S.2d 802; Holchendler v. We Transp., 292 A.D.2d 568, 739 N.Y.S.2d 621), leave should not be granted where "the proposed amendment is palpably insufficient as a matter of law or is totally devoid of merit" ( Morton v. Brookhaven Mem. Hosp., 32 A.D.3d 381, 381, 820 N.Y.S.2d 294; see Thone v. Crown Equip. Corp., 27 A.D.3d 723, 810 N.Y.S.2d 925). Here, the proposed amendment was clearly without merit as the plaintiffs' motion was made nearly one year after the statute of limitations had expired, and there was no basis in the record to support a claim that the Town of Babylon should be estopped from relying upon the expiration of the statute of limitations ( see Luka v. New York City Tr. Auth., 100 A.D.2d 323, 325, 474 N.Y.S.2d 32, affd. 63 N.Y.2d 667, 479 N.Y.S.2d 524, 468 N.E.2d 706; Yassin v. Sarabu, 284 A.D.2d 531, 727 N.Y.S.2d 620; Nowinski v. City of New York, 189 A.D.2d 674, 675, 592 N.Y.S.2d 369).
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