Nanomedicon, LLC v. Research Foundation of State University

Majority

p. 684

Nanomedicon, LLC, Respondent, v Research Foundation of State University of New York, Respondent and Pelagia-Irene Gouma, Defendant/Third-Party Plaintiff-Appellant. Medicon, Inc., et al., Third-Party Defendants-Respondents.

[10 NYS3d 552]

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

p. 685

exercise of which will not be lightly disturbed (see Bank of Smithtown v 219 Sagg Main, LLC, 107 AD3d 654 [2013]; Greco v Christoffersen, 70 AD3d 769 , 770 [2010]; Brooks v Robinson, 56 AD3d 406 [2008]). Although leave to amend pleadings should be “freely given” (CPLR 3025 [b]; see Boakye-Yiadom v Roosevelt Union Free School Dist., 57 AD3d 929 , 931 [2008]), a court should deny such a motion when the proposed amendment is palpably insufficient or patently without merit (see Pedote v Kelly, 124 AD3d 855 [2015]; Young v Brown, 113 AD3d 761 [2014]; Spodek v Neiss, 104 AD3d 758 [2013]; Bloom v Lugli, 102 AD3d 715 [2013]; Congel v Malfitano, 84 AD3d 1145 , 1146 [2011]). 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 insufficient and patently devoid of merit (see Crystal Clear Dev., LLC v Devon Architects of N.Y., PC., 97 AD3d 716 , 719 [2012]; Ferrandino & Son, Inc. v Wheaton Bldrs., Inc., LLC, 82 AD3d 1035 , 1037 [2011]).

We decline the request of the third-party defendant-respondent Medicon, Inc., to impose a sanction upon the appellant for pursuing an allegedly frivolous appeal (see 22 NYCRR 130-1.1).

Balkin, J.R, Roman, Maltese and Barros, JJ., concur.

Cases cited

Bank of Smithtown v. 219 Sagg Main, LLC 107 AD3d 654 N.Y. App. Div. 2013-06-05 p. 685
Greco v. Christoffersen 70 AD3d 769 N.Y. App. Div. 2010-02-09 at 770 p. 685
Boakye-Yiadom v. Roosevelt Union Free School District 57 AD3d 929 N.Y. App. Div. 2008-12-30 at 931 p. 685
Pedote v. Kelly 124 AD3d 855 N.Y. App. Div. 2015-01-28 p. 685
Young v. Brown 113 AD3d 761 N.Y. App. Div. 2014-01-22 p. 685
Spodek v. Neiss 104 AD3d 758 N.Y. App. Div. 2013-03-13 p. 685
Bloom v. Lugli 102 AD3d 715 N.Y. App. Div. 2013-01-16 p. 685
Congel v. Malfitano 84 AD3d 1145 N.Y. App. Div. 2011-05-24 at 1146 p. 685
Crystal Clear Development, LLC v. Devon Architects of New York, P.C. 97 AD3d 716 N.Y. App. Div. 2012-07-18 at 719 p. 685
Ferrandino & Son, Inc. v. Wheaton Builders, Inc. 82 AD3d 1035 N.Y. App. Div. 2011-03-22 at 1037 p. 685