Truebright Co. v. Lester

Appellate Division of the Supreme Court of New York

Truebright Co. v. Lester

84 A.D.3d 1065, 922 N.Y.S.2d 815

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

DecidedMay 17, 2011

StatusPublished

Cited by2 cases

This text of 84 A.D.3d 1065 (Truebright Co. v. Lester) 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

Truebright Co. v. Lester, 84 A.D.3d 1065, 922 N.Y.S.2d 815 (N.Y. Ct. App. 2011).

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Opinion

In an action, inter alia, to recover damages for legal malpractice, the plaintiffs appeal from an order of the Supreme Court, Nassau County (Cozzens, Jr., J.), entered September 29, 2010, which, in effect, granted the defendant’s motion for leave to amend his answer to assert the affirmative defense of lack of legal capacity to sue.

Ordered that the order is affirmed, with costs.

Under the circumstances, the Supreme Court did not improvidently exercise its discretion when it, in effect, granted the defendant’s motion for leave to amend his answer, as the proposed amendment was neither palpably insufficient nor patently devoid of merit, and there was no evidence that it would prejudice or surprise the plaintiffs (see CPLR 3025 [b]; Matter of Roberts v Borg, 35 AD3d 617, 618 [2006]; Public Adm’r of Kings County v Hossain Constr. Corp., 27 AD3d 714, 716 [2006]). To the extent that the plaintiffs “wish[ ] to test the merits of the proposed added . . . defense, [they] may . . . move for summary judgment upon a proper showing” (Lucido v Mancuso, 49 AD3d [1066]*1066220, 229 [2008]). Covello, J.E, Eng, Chambers and Miller, JJ., concur.

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In an action, inter alia, to recover damages for legal malpractice, the plaintiffs appeal from an order of the Supreme Court, Nassau County (Cozzens, Jr., J.), entered September 29, 2010, which, in effect, granted the defendant’s motion for leave to amend his answer to assert the affirmative defense of lack of legal capacity to sue.

Ordered that the order is affirmed, with costs.

Under the circumstances, the Supreme Court did not improvidently exercise its discretion when it, in effect, granted the defendant’s motion for leave to amend his answer, as the proposed amendment was neither palpably insufficient nor patently devoid of merit, and there was no evidence that it would prejudice or surprise the plaintiffs (see CPLR 3025 [b]; Matter of Roberts v Borg, 35 AD3d 617, 618 [2006]; Public Adm’r of Kings County v Hossain Constr. Corp., 27 AD3d 714, 716 [2006]). To the extent that the plaintiffs “wish[ ] to test the merits of the proposed added . . . defense, [they] may . . . move for summary judgment upon a proper showing” (Lucido v Mancuso, 49 AD3d [1066]*1066220, 229 [2008]). Covello, J.E, Eng, Chambers and Miller, JJ., concur.

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Bluebook (online)

84 A.D.3d 1065, 922 N.Y.S.2d 815, Counsel Stack Legal Research, https://law.counselstack.com/opinion/truebright-co-v-lester-nyappdiv-2011.

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