Opinion
April 15, 1996
Appeal from the Supreme Court, Dutchess County (Hillery, J.).
Ordered that the order is reversed insofar as appealed from, on the law, with costs, and the branches of the defendants' motion which were for leave to amend the answer and for partial summary judgment are denied in their entirety.
The Supreme Court erred by granting the respondents leave to amend the answer to assert a third affirmative defense to the plaintiff's cause of action to recover damages for breach of a covenant of the lease. While permission to serve amended pleadings should be freely granted (CPLR 3025 [b]), a pleading that is totally devoid of merit should not be allowed ( see, Krupp v. Aetna Life Cas. Co., 104 A.D.2d 857; Taylor v. Taylor, 84 A.D.2d 947). Contrary to the respondents' contention, the plaintiff did not waive her right to hold the respondents in default by accepting the rent after serving a notice of termination of the lease since the parties mutually assented to the nonwaiver clause in the lease ( see, Jefpaul Garage Corp. v Presbyterian Hosp., 61 N.Y.2d 442, 446; Matter of Castaldo [Harrington], 212 A.D.2d 1004).
The respondents' contention that the Supreme Court erred by denying the branch of the defendants' motion which was to amend the answer to add an affirmative defense that the plaintiff's notice of termination was defective cannot be considered on this appeal because the respondents have not cross-appealed ( see, Al-Ev Constr. Corp. v. Ahern Maintenance Supply Corp., 141 A.D.2d 591, 592-593; Davis v. Weg, 104 A.D.2d 617, 620). Thompson, J.P., Sullivan, Pizzuto and McGinity, JJ., concur.