Nanomedicon, LLC v. Research Found. of State Univ. of N.Y.

• Decision Date: 03 June 2015
• Docket Number: 2013-03906
• Citation: 129 A.D.3d 684,10 N.Y.S.3d 552,2015 N.Y. Slip Op. 04619
• Parties: NANOMEDICON, LLC, plaintiff-respondent, v. RESEARCH FOUNDATION OF STATE UNIVERSITY OF NEW YORK, defendant-respondent, Pelagia–Irene Gouma, defendant third-party plaintiff-appellant, Medicon, Inc., et al., third-party defendants-respondents.
• Court: New York Supreme Court — Appellate Division

129 A.D.3d 684

10 N.Y.S.3d 552

2015 N.Y. Slip Op. 04619

NANOMEDICON, LLC, plaintiff-respondent

v. RESEARCH FOUNDATION OF STATE UNIVERSITY OF NEW YORK, defendant-respondentPelagia–Irene Gouma, defendant third-party plaintiff-appellantMedicon, Inc., et al., third-party defendants-respondents.

2013-03906

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

June 3, 2015.

Sinnreich Kosakoff & Messina LLP, Central Islip, N.Y. (Lisa A. Perillo and Jonathan Sinnreich of counsel), and Lombard & Geliebter, LLP, New York, N.Y. (Lucien C. Chen of counsel), for defendant third-party plaintiff-appellant (one brief filed).

Thompson Hine LLP, New York, N.Y. (Joseph W. Muccia, Barry M. Kazan, and Shaun McElhenny of counsel), for plaintiff-respondent and third-party defendant-respondent Anastasia Rigas.

Scully, Scott, Murphy & Presser, P.C., Garden City, N.Y. (Steven I. Wallach of counsel), for defendant-respondent.

Schnader Harrison Segal & Lewis LLP, New York, N.Y. (Theodore L. Hecht of counsel), for third-party defendant-respondent Medicon, Inc., now known as Medicon Pharmaceuticals, Inc.

RUTH C. BALKIN, J.P., SHERI S. ROMAN, JOSEPH J. MALTESE, and BETSY BARROS, JJ.

Opinion

In an action, inter alia, to recover damages for breach of contract, the defendant-third-party plaintiff, Pelagia–Irene Gouma, appeals, as limited by her brief and a letter dated December 19, 2013, from so much of an order of the Supreme Court, Suffolk County (Emerson, J.), dated February 25, 2013, as denied that branch of her motion which was pursuant to CPLR 3025(b) for leave to serve a second amended answer with counterclaims and a second amended third-party complaint.

ORDERED that the order is affirmed insofar as appealed from, with one bill of costs to the respondents appearing separately and filing separate briefs.

A determination whether to grant leave to serve an amended pleading is within the Supreme Court's broad discretion, the exercise of which will not be lightly disturbed (see Bank of Smithtown v. 219 Sagg Main, LLC, 107 A.D.3d 654, 968 N.Y.S.2d 95 ; Greco v. Christoffersen, 70 A.D.3d 769, 770, 896 N.Y.S.2d 363 ; Brooks v. Robinson, 56 A.D.3d 406, 867 N.Y.S.2d 133 ). Although leave to amend pleadings should be “freely given” (CPLR 3025[b] ; see Boakye–Yiadom v. Roosevelt Union Free School Dist., 57 A.D.3d 929, 931, 871 N.Y.S.2d 314 ), a court should deny such a motion when the proposed amendment is palpably insufficient or patently without merit (see Pedote v. Kelly, 124 A.D.3d 855 ; Young v. Brown, 113 A.D.3d 761, 978 N.Y.S.2d 867 ; Spodek v. Neiss, 104 A.D.3d 758, 961 N.Y.S.2d 251 ; Bloom v. Lugli, 102 A.D.3d 715, 958 N.Y.S.2d 184 ; Congel v. Malfitano, 84 A.D.3d 1145, 1146, 924 N.Y.S.2d 129 ). Here, the Supreme Court providently exercised its discretion in denying that branch of the appellant's motion which was for leave to serve a second amended answer with counterclaims and a second amended third-party complaint, since the proposed amendment was palpably...