Opinion
09-20-2017
Tina SIRAGUSA, as mother and natural guardian of I. S., an infant, and Tina Siragusa, individually, respondent, v. CONAIR CORPORATION, et al., appellants.
Smith Mazure Director Wilkins Young & Yagerman, P.C., New York, NY (Louise M. Cherkis of counsel), for appellants. Sullivan Papain Block McGrath & Cannavo P.C., New York, NY (Stephen C. Glasser of counsel), for respondent.
Smith Mazure Director Wilkins Young & Yagerman, P.C., New York, NY (Louise M. Cherkis of counsel), for appellants.
Sullivan Papain Block McGrath & Cannavo P.C., New York, NY (Stephen C. Glasser of counsel), for respondent.
WILLIAM F. MASTRO, J.P., RUTH C. BALKIN, SANDRA L. SGROI, and COLLEEN D. DUFFY, JJ.
In an action, inter alia, to recover damages for personal injuries, etc., the defendants appeal, as limited by their brief, from so much of an order of the Supreme Court, Nassau County (Iannacci, J.), entered July 24, 2014, as denied their motion for leave to amend their answer.
ORDERED that the order is affirmed insofar as appealed from, with costs.
In 2010, the plaintiff's then four-year-old daughter allegedly was injured when her hand came into contact with the blades of a hand-held stick blender that was left on the kitchen counter, plugged in but not running, while the plaintiff went to retrieve something from the freezer. The plaintiff commenced this action, inter alia, to recover damages for strict products liability and breach of warranty against the defendants, which allegedly manufactured and sold the blender. The defendants moved for leave to amend their answer to assert a counterclaim against the plaintiff for contribution and indemnification. The Supreme Court denied the motion. The defendants appeal.
In the absence of prejudice or surprise resulting directly from the delay in seeking leave, applications for leave to amend a pleading are to be freely granted "unless the proposed amendment is palpably insufficient or patently devoid of merit" ( Lucido v. Mancuso, 49 A.D.3d 220, 222, 851 N.Y.S.2d 238 ; see CPLR 3025[b] ; Roman Catholic Diocese of Brooklyn v. Christ the King Regional High School, 149 A.D.3d 997, 50 N.Y.S.3d 306 ). Here, the acts complained of in the proposed counterclaim did not implicate a duty owed to the public at large, but rather, only gave rise to an allegation that the plaintiff negligently supervised her child, which cannot serve as the basis for cognizable claims for contribution or indemnification (see Holodook v. Spencer, 36 N.Y.2d 35, 51, 364 N.Y.S.2d 859, 324 N.E.2d 338 ; Lafia v. Baldwin Summer Program Assn., Inc., 77 A.D.3d 711, 908 N.Y.S.2d 609 ; Wheeler v. Sears Roebuck & Co., 37 A.D.3d 710, 711, 831 N.Y.S.2d 427 ; Zikely v. Zikely, 98 A.D.2d 815, 470 N.Y.S.2d 33, affd. 62 N.Y.2d 907, 479 N.Y.S.2d 8, 467 N.E.2d 892 ; cf. Maldonado v. Newport Gardens, Inc., 91 A.D.3d 731, 732, 937 N.Y.S.2d 260 ). The proposed amendment was, therefore, palpably insufficient, and the Supreme Court properly denied the defendants' motion.