Reese v. Jahan Contracting

• Citation: 2014 N.Y. Slip Op. 06303,993 N.Y.S.2d 151,120 A.D.3d 1399
• Decision Date: 24 September 2014
• Docket Number: 2013-10172
• Parties: William REESE, plaintiff, v. JAHAN CONTRACTING, appellant.
• Court: New York Supreme Court Appellate Division

120 A.D.3d 1399
993 N.Y.S.2d 151
2014 N.Y. Slip Op. 06303

William REESE, plaintiff
v.
JAHAN CONTRACTING, appellant.

2013-10172

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

Sept. 24, 2014.

993 N.Y.S.2d 151

Weiner, Millo, Morgan & Bonanno, LLC, New York, N.Y. (Richard A. Walker of counsel), for appellant.

MARK C. DILLON, J.P., THOMAS A. DICKERSON, SHERI S. ROMAN, and SANDRA L. SGROI, JJ.

Opinion

120 A.D.3d 1400

In an action to recover damages for breach of contract, the defendant appeals from so much of an order of the Supreme Court, Kings County (Baynes, J.), dated June 13, 2013, as denied its cross motion pursuant to CPLR 3025(b) for leave to amend its answer to assert proposed affirmative defenses.

ORDERED that the order is modified, on the law, by deleting the provision thereof denying that branch of the defendant's cross motion which was for leave to amend its answer to assert the proposed fifteenth affirmative defense, and substituting therefor a provision granting that branch of the cross motion; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.

In the absence of prejudice or surprise to the opposing party, leave to amend a pleading should be freely granted unless the proposed amendment is palpably insufficient or patently devoid of merit (see CPLR 3025[b] ; Bernardi v. Spyratos, 79 A.D.3d 684, 688, 912 N.Y.S.2d 627 ; Pike v. New York Life Ins. Co., 72 A.D.3d 1043, 1047, 901 N.Y.S.2d 76 ; Malanga v. Chamberlain, 71 A.D.3d 644, 646, 896 N.Y.S.2d 385 ). The first fourteen proposed affirmative defenses were palpably insufficient or patently devoid of merit (see Marcum, LLP v. Silva, 117 A.D.3d 917, 986 N.Y.S.2d 508 ; Ferriola v. DiMarzio, 83 A.D.3d 657, 658, 919 N.Y.S.2d 871 ; Kuslansky v. Kuslansky, Robbins, Stechel & Cunningham, LLP, 50 A.D.3d 1101, 858 N.Y.S.2d 212 ; Unger v. Leviton, 25 A.D.3d 689, 811 N.Y.S.2d 691 ).

However,...