Opinion
December 2, 1985
Appeal from the Supreme Court, Nassau County (Balletta, J.).
Order reversed, with costs, and motion for leave to serve an amended answer granted. The amended answer is deemed served.
CPLR 3025 (b) provides that a party may amend a pleading at any time by leave of court and that leave shall be freely given upon such terms as may be just. The legal sufficiency or merits of a proposed amendment will not be examined on the motion to amend unless its insufficiency or lack of merit is clear and free from doubt (see, Barnes v County of Nassau, 108 A.D.2d 50; Norman v Ferrara, 107 A.D.2d 739; Goldstein v Brogan Cadillac Oldsmobile Corp., 90 A.D.2d 512). Noting that appellant, who sought to amend his answer to invoke the doctrine of unclean hands, was not actually injured by plaintiff's conduct, Special Term ruled that the proposed amendment to the answer was "without merit" and therefore denied leave to serve the amended answer. We cannot agree with this determination.
Germane to this situation is a line of cases where a plaintiff transfers property to the defendant, usually a relative, to defeat the interests of a third party, also usually a relative, and then the defendant, who has not been injured by the transaction, raises the doctrine when the plaintiff sues to reclaim the transferred property (see, Farino v Farino, 88 A.D.2d 902; see also, Pattison v Pattison, 301 N.Y. 65; Levy v Braverman, 24 A.D.2d 430; Pierce v Pierce, 253 App. Div. 445, affd 280 N.Y. 562). Indeed, this court has explicitly held it erroneous to require a showing of injury on the defendant's part to invoke the doctrine in this situation (see, Farino v Farino, supra, p. 903). Thus, at bar, where, in an effort to thwart his wife's interest, plaintiff deeded property to his mother (who deeded it to appellant before her death), it cannot be said that appellant's proposed amendment to invoke plaintiff's unclean hands was "palpably insufficient as a matter of law or * * * totally devoid of merit" (Norman v Ferrara, 107 A.D.2d 739, 740, supra; see also, Taylor v Taylor, 84 A.D.2d 947).
Accordingly, it was an improvident exercise of discretion for Special Term to deny leave to serve the amended answer. The order appealed from is reversed, and the motion granted. Lazer, J.P., Thompson, O'Connor, Rubin and Kunzeman, JJ., concur.