Aponte v. Brentwood Union Free School District

Appellate Division of the Supreme Court of New York

Aponte v. Brentwood Union Free School District

270 A.D.2d 295, 704 N.Y.S.2d 285, 2000 N.Y. App. Div. LEXIS 2706

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMarch 13, 2000

StatusPublished

Cited by1 cases

This text of 270 A.D.2d 295 (Aponte v. Brentwood Union Free School District) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Aponte v. Brentwood Union Free School District, 270 A.D.2d 295, 704 N.Y.S.2d 285, 2000 N.Y. App. Div. LEXIS 2706 (N.Y. Ct. App. 2000).

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Opinion

—In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Suffolk County (Seidell, J.), dated January 4, 1999, which granted the defendants’ motion for leave to amend the answer to assert the affirmative defense of the Statute of Limitations, and to dismiss the complaint.

Ordered that the order is reversed, on the law, with costs, the motion is denied, and the complaint is reinstated.

While leave to amend a pleading should be freely given (see, CPLR 3025 [b]), the decision whether to grant such leave is within the court’s discretion (see, Edenwald Contr. Co. v City of New York, 60 NY2d 957, 959; Mayers v D'Agostino, 58 NY2d 696). However, where the proposed amendment is palpably insufficient as a matter of law or is totally devoid of merit, leave should be denied (see, Tarantini v Russo Realty Corp., 259 AD2d 484; Alejandro v Riportella, 250 AD2d 556; Sentry Ins. Co. v Kero-Sun, Inc., 122 AD2d 204). Contrary to the defendants’ contention, the Statute of Limitations was tolled for the applicable period of infancy even though the infant [296]*296plaintiff timely filed a notice of claim pursuant to General Municipal Law § 50-e (see, Henry v City of New York, 94 NY2d 275; CPLR 208). Mangano, P. J., Santucci, Krausman, Florio and Schmidt, JJ., concur.

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—In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Suffolk County (Seidell, J.), dated January 4, 1999, which granted the defendants’ motion for leave to amend the answer to assert the affirmative defense of the Statute of Limitations, and to dismiss the complaint.

Ordered that the order is reversed, on the law, with costs, the motion is denied, and the complaint is reinstated.

While leave to amend a pleading should be freely given (see, CPLR 3025 [b]), the decision whether to grant such leave is within the court’s discretion (see, Edenwald Contr. Co. v City of New York, 60 NY2d 957, 959; Mayers v D'Agostino, 58 NY2d 696). However, where the proposed amendment is palpably insufficient as a matter of law or is totally devoid of merit, leave should be denied (see, Tarantini v Russo Realty Corp., 259 AD2d 484; Alejandro v Riportella, 250 AD2d 556; Sentry Ins. Co. v Kero-Sun, Inc., 122 AD2d 204). Contrary to the defendants’ contention, the Statute of Limitations was tolled for the applicable period of infancy even though the infant [296]*296plaintiff timely filed a notice of claim pursuant to General Municipal Law § 50-e (see, Henry v City of New York, 94 NY2d 275; CPLR 208). Mangano, P. J., Santucci, Krausman, Florio and Schmidt, JJ., concur.

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270 A.D.2d 295, 704 N.Y.S.2d 285, 2000 N.Y. App. Div. LEXIS 2706, Counsel Stack Legal Research, https://law.counselstack.com/opinion/aponte-v-brentwood-union-free-school-district-nyappdiv-2000.

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