Opinion
No. CA 09-01393.
December 30, 2009.
Appeal from an order of the Supreme Court, Erie County (John M. Curran, J.), entered February 13, 2009 in a breach of contract action. The order granted the motion of plaintiff for leave to serve a second amended complaint.
SIEGEL, KELLEHER KAHN, LLP, BUFFALO (ROSS S. GELBER OF COUNSEL), FOR DEFENDANT-APPELLANT.
McGEE GELMAN, BUFFALO (JENNIFER L. FRIEDMAN OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
Present: Hurlbutt, J.P., Smith, Fahey and Carni, JJ.
It is hereby ordered that the order so appealed from is unanimously affirmed without costs.
Memorandum: Plaintiff commenced this action seeking damages for, inter alia, breach of its employment contract with defendant. We conclude that Supreme Court properly granted plaintiff's motion seeking leave to serve a second amended complaint. "[Generally, leave to amend a pleading should be freely granted in the absence of prejudice to the nonmoving party where the amendments are] not patently lacking in merit . . ., and the decision whether to grant leave to amend a [pleading] is committed to the sound discretion of the court" ( Tag Mech. Sys., Inc. v V.I.P. Structures, Inc., 63 AD3d 1504, 1505 [internal quotation marks omitted]; see CPLR 3025 [b]; Edenwald Contr. Co. v City of New York, 60 NY2d 957, 959). Contrary to defendant's contentions, the proposed amendments "are based upon the same transactions and occurrences as the claims asserted in the first amended complaint and are not time-barred" ( Maxon v Franklin Traffic Serv., 261 AD2d 830, 830).