Opinion
234 CA 21-01091
04-29-2022
Kathleen RENO, Plaintiff-Respondent, v. WHEATLAND-CHILI CENTRAL SCHOOL DISTRICT, Defendant-Appellant, et al., Defendant.
HARRIS BEACH PLLC, ROCHESTER (JULIEN M. BAUMRIN OF COUNSEL), FOR DEFENDANT-APPELLANT. STEVE BOYD, P.C., WILLIAMSVILLE (STEPHEN BOYD OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
HARRIS BEACH PLLC, ROCHESTER (JULIEN M. BAUMRIN OF COUNSEL), FOR DEFENDANT-APPELLANT.
STEVE BOYD, P.C., WILLIAMSVILLE (STEPHEN BOYD OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
PRESENT: WHALEN, P.J., SMITH, NEMOYER, CURRAN, AND BANNISTER, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from is unanimously modified on the law by denying the cross motion and as modified the order is affirmed without costs.
Memorandum: Defendant-appellant (defendant) appeals from an order that granted plaintiff's motion for leave to reargue a prior order and, upon reargument, granted plaintiff's cross motion for leave to amend the complaint by adding a cause of action for failure to report under Social Services Law § 420 (2). Even assuming, arguendo, that Supreme Court properly granted plaintiff's motion for leave to reargue, we agree with defendant that the court should have adhered to its original denial of the cross motion. It is well established that leave to amend should be denied where, inter alia, "the proposed amendment is palpably insufficient" ( Hofstra Univ. v. Nassau County, N.Y. , 166 A.D.3d 861, 862, 89 N.Y.S.3d 1 [2d Dept. 2018] [internal quotation marks omitted]; see Dentes v. Wetherell , 139 A.D.2d 899, 899, 527 N.Y.S.2d 989 [4th Dept. 1988] ). Here, plaintiff's proposed cause of action under section 420 (2) is palpably insufficient because it neither pleads nor alleges facts tending to establish a necessary element of such a cause of action, i.e., that defendant's alleged failure to report was done "knowingly and willfully" ( § 420 [2] ; see Ibarrondo v. Evans , 191 A.D.3d 602, 603, 143 N.Y.S.3d 340 [1st Dept. 2021] ; Galanova v. Safir , 127 A.D.3d 686, 687, 4 N.Y.S.3d 538 [2d Dept. 2015] ; Gelmac Quality Feeds, Inc. v. Ronning , 23 A.D.3d 1019, 1020, 804 N.Y.S.2d 174 [4th Dept. 2005] ; see generally Hong Qin Jiang v. Li Wan Wu , 179 A.D.3d 1041, 1042, 118 N.Y.S.3d 205 [2d Dept. 2020] ). We therefore modify the order accordingly. Defendant's remaining contention is academic in light of our determination.