Tarantini v. Russo Realty Corp.

273 A.D.2d 458, 712 N.Y.S.2d 358, 2000 N.Y. App. Div. LEXIS 7383

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 26, 2000
• Status: Published

Opinion

In an action, inter alia, to establish title to certain real property by adverse possession, the defendant Russo Realty Corp. appeals from (1) a decision of the Supreme Court, Suffolk County (Catterson, J.), dated June 4, 1999, and (2) an order of the same court dated February 18, 2000, which denied its motion for leave to amend its answer to interpose a defense that RPAPL 541 unconstitutionally deprived it of its right to property.

Ordered that the appeal from the decision is dismissed, as no appeal lies from a decision (see, Schicchi v Green Constr. Corp., 100 AD2d 509); and it is further,

Ordered that the order is affirmed; and it is further,

Ordered that the respondent is awarded one bill of costs.

Motions for leave to amend pleadings should be liberally granted absent prejudice or surprise resulting directly from the delay (see, CPLR 3025 [b]; McCaskey, Davies & Assocs. v New York City Health & Hosps. Corp., 59 NY2d 755; Fahey v County of Ontario, 44 NY2d 934, 935). However, where the proposed amendment is palpably insufficient as a matter of law or is totally devoid of merit, leave should be denied (see, Alejandro v Riportella, 250 AD2d 556; Sentry Ins. Co. v Kero-Sun, Inc., 122 AD2d 204; Norman v Ferrara, 107 AD2d 739). Here, the appellant’s proposed defense, that RPAPL 541 unconstitutionally deprived it of its right to property, is totally devoid of merit. Therefore, the motion for leave to amend the answer was properly denied. S. Miller, J. P., Altman, H. Miller and Schmidt, JJ., concur.