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Capezzano Constr. Corp. v. Weinberger

SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
May 10, 2017
2017 N.Y. Slip Op. 3725 (N.Y. App. Div. 2017)

Opinion

2015-09117

05-10-2017

Capezzano Construction Corporation, appellant, v. Ellen Weinberger, also known as Ellen Weinberger Vera, et al., respondents.

Joseph Obermeister, Cedarhurst, NY (Samuel Katz of counsel), for appellant. Alter & Barbaro, Brooklyn, NY (Stephen V. Barbaro of counsel), for respondents.


SANDRA L. SGROI COLLEEN D. DUFFY BETSY BARROS, JJ. (Index No. 8141/07)

Joseph Obermeister, Cedarhurst, NY (Samuel Katz of counsel), for appellant.

Alter & Barbaro, Brooklyn, NY (Stephen V. Barbaro of counsel), for respondents.

DECISION & ORDER

In an action to foreclose a mechanic's lien, the plaintiff appeals from an order of the Supreme Court, Kings County (Spodek, J.), dated June 23, 2015, which granted the defendants' motion for leave to amend their answer.

ORDERED that the order is affirmed, with costs.

Leave to amend a pleading shall be freely given absent prejudice or surprise resulting directly from the delay "unless the proposed amendment is palpably insufficient or patently devoid of merit" (Lucido v Mancuso, 49 AD3d 220, 222; see CPLR 3025[b]; McCaskey, Davies & Assoc. v New York City Health & Hosps. Corp., 59 NY2d 755, 757; Fahey v County of Ontario, 44 NY2d 934, 935). "The granting of such leave is committed to the sound discretion of the trial court and must be determined on a case-by-case basis" (Skinner v Scobbo, 221 AD2d 334, 335).

In this case, the Supreme Court providently exercised its discretion in granting the defendants' motion for leave to amend their answer to assert additional counterclaims against the plaintiff. The counterclaims sought to be interposed were not palpably insufficient or patently devoid of merit. In addition, the plaintiff cannot claim either prejudice or surprise as a result of the amendment.

CHAMBERS, J.P., SGROI, DUFFY and BARROS, JJ., concur. ENTER:

Aprilanne Agostino

Clerk of the Court


Summaries of

Capezzano Constr. Corp. v. Weinberger

SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
May 10, 2017
2017 N.Y. Slip Op. 3725 (N.Y. App. Div. 2017)
Case details for

Capezzano Constr. Corp. v. Weinberger

Case Details

Full title:Capezzano Construction Corporation, appellant, v. Ellen Weinberger, also…

Court:SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department

Date published: May 10, 2017

Citations

2017 N.Y. Slip Op. 3725 (N.Y. App. Div. 2017)