Long Island Title Agency, Inc. v. Frisa

45 A.D.3d 649, 846 N.Y.S.2d 253

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 13, 2007
• Status: Published

Opinion

In an action, inter alia, for repayment of loans, the plaintiff appeals from so much of an order of the Supreme Court, Nassau County (Lally, J.), dated July 19, 2006, as granted that branch of the defendant’s cross motion which was for leave to amend her answer to assert the defense of the statute of frauds.

Ordered that the order is affirmed insofar as appealed from, with costs.

“CPLR 3025 (b) provides that leave to amend pleadings ‘shall be freely given upon such terms as may be just.’ Thus, motions for leave to amend are liberally granted absent prejudice or surprise. A court hearing a motion for leave to amend will not examine the merits of the proposed amendment ‘unless the insufficiency or lack of merit is clear and free from doubt ... In cases where the proposed amendment is palpably insufficient as a matter of law or is totally devoid of merit, leave should be denied’ ” (Ricca v Valenti 24 AD3d 647, 648 [2005] [citations omitted]). Since the proposed amendment was neither palpably insufficient as a matter of law nor totally devoid of merit, and no prejudice or surprise was shown, leave to amend was properly granted (see Fahey v County of Ontario, 44 NY2d 934, 935 [1978]; Old World Custom Homes, Inc. v Crane, 33 AD3d 600 [2006]; see also Zwiebel v Guttman, 26 AD3d 429, 431 [2006]; cf. Corman v LaFountain, 38 AD 3d 706, 707 [2007]; Negvesky v United Interior Resources, Inc., 32 AD3d 530, 531 [2006]; Darbonne v Goldberger, 31 AD3d 693, 696 [2006]; Clark v Trois, 21 AD3d 439, 440 [2005]). Rivera, J.P., Covello, Angiolillo and Dickerson, JJ., concur.