Opinion
828 CA 21-00304
11-19-2021
Glenda S. CHRISTIAN, Plaintiff-Respondent, v. BROOKDALE SENIOR LIVING COMMUNITIES, INC., et al., Defendants, and Thomas Kapinos, Jr., Doing Business as Precision Flooring, Defendant-Appellant.
KENNEY SHELTON LIPTAK NOWAK LLP, BUFFALO (RICHARD T. SARAF OF COUNSEL), FOR DEFENDANT-APPELLANT. LIPSITZ GREEN SCIME CAMBRIA LLP, BUFFALO (JOHN A. COLLINS OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
KENNEY SHELTON LIPTAK NOWAK LLP, BUFFALO (RICHARD T. SARAF OF COUNSEL), FOR DEFENDANT-APPELLANT.
LIPSITZ GREEN SCIME CAMBRIA LLP, BUFFALO (JOHN A. COLLINS OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
PRESENT: SMITH, J.P., CARNI, NEMOYER, TROUTMAN, AND WINSLOW, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs. Memorandum: Plaintiff commenced this action seeking damages for injuries she purportedly sustained as a result of a trip and fall accident occurring in a nursing home where she was working as a licensed practical nurse. Thomas Kapinos, Jr., doing business as Precision Flooring (defendant) thereafter moved for leave to serve an amended answer that would add an affirmative defense and counterclaim alleging that, "[u]pon information and belief, plaintiff's filing of this lawsuit was frivolous, given the lack of merit based on the underlying facts of the claim, and ... plaintiff's fraud and related misconduct with respect to the same. Further, based on same, defendant requests sanctions, costs and disbursement for this action." Defendant now appeals from that part of an order denying his motion. We affirm.
"Although leave to amend a pleading should be freely granted (see CPLR 3025 [b] ), it may be denied where the proposed amendment is palpably insufficient or patently devoid of merit" ( Matter of DeCarr v. Zoning Bd. of Appeals for Town of Verona , 154 A.D.3d 1311, 1314, 62 N.Y.S.3d 244 [4th Dept. 2017] [internal quotation marks omitted]; see Pink v. Ricci , 100 A.D.3d 1446, 1448-1449, 954 N.Y.S.2d 306 [4th Dept. 2012] ; J.K. Tobin Constr. Co., Inc. v. David J. Hardy Constr. Co., Inc. , 64 A.D.3d 1206, 1209, 883 N.Y.S.2d 681 [4th Dept. 2009] ), and "the decision whether to grant leave to amend a [pleading] is committed to the sound discretion of the court" ( Pink , 100 A.D.3d at 1449, 954 N.Y.S.2d 306 [internal quotation marks omitted]; see Duszynski v. Allstate Ins. Co. , 107 A.D.3d 1448, 1449, 967 N.Y.S.2d 796 [4th Dept. 2013] ; Carro v. Lyons Falls Pulp & Paper, Inc. , 56 A.D.3d 1276, 1277, 867 N.Y.S.2d 646 [4th Dept. 2008] ). Here, we conclude that Supreme Court did not abuse its discretion in declining to grant leave to amend the answer inasmuch as the proposed amendment is palpably insufficient or patently devoid of merit.
Indeed, there is no legal basis for the proposed counterclaim insofar as it sought damages as sanctions for allegedly frivolous conduct because "New York does not recognize a separate cause of action or counterclaim seeking the imposition of sanctions" ( Adirondack Bank v. Midstate Foam & Equip., Inc. , 159 A.D.3d 1354, 1357, 73 N.Y.S.3d 814 [4th Dept. 2018] ; see generally Young v. Crosby , 87 A.D.3d 1308, 1309, 930 N.Y.S.2d 352 [4th Dept. 2011] ; Schwartz v. Sayah , 72 A.D.3d 790, 792, 899 N.Y.S.2d 316 [2d Dept. 2010] ).
We conclude that the proposed defense and counterclaim for fraud is palpably insufficient inasmuch as CPLR 3016 (b) requires that, where a defense or counterclaim is based on fraud, "the circumstances constituting the wrong shall be stated in detail," and here the alleged fraud was not pleaded with sufficient specificity (see Ibarrondo v. Evans, 191 A.D.3d 602, 603, 143 N.Y.S.3d 340 [1st Dept. 2021] ; see generally Friedland Realty, Inc. v. 416 W, LLC , 120 A.D.3d 1185, 1187, 993 N.Y.S.2d 43 [2d Dept. 2014] ; Nicholas A. Cutaia, Inc. v. Buyer's Bazaar, Inc. , 224 A.D.2d 952, 953, 637 N.Y.S.2d 857 [4th Dept. 1996] ). In any event, the record here established that the defense and counterclaim for fraud were also "patently devoid of merit" ( DeCarr , 154 A.D.3d at 1314, 62 N.Y.S.3d 244 [internal quotation marks omitted]).
Defendant's remaining contentions are academic in light of our determination.