Opinion
1006 CA 21-00601
12-23-2021
ALLEGHANY CONSTRUCTION INC., Plaintiff-Respondent, v. CHAUTAUQUA WOODS CORP. and Shaant Industries, Inc., Defendants-Appellants. (Appeal No. 2.)
COTTER & COTTER, BUFFALO (DAVID B. COTTER OF COUNSEL), FOR DEFENDANT-APPELLANT. WRIGHT, WRIGHT AND HAMPTON, JAMESTOWN (JOSEPH M. CALIMERI OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
COTTER & COTTER, BUFFALO (DAVID B. COTTER OF COUNSEL), FOR DEFENDANT-APPELLANT.
WRIGHT, WRIGHT AND HAMPTON, JAMESTOWN (JOSEPH M. CALIMERI OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
PRESENT: CENTRA, J.P., PERADOTTO, TROUTMAN, WINSLOW, AND DEJOSEPH, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: In this breach of contract action, defendants appeal, in appeal No. 1, from an order granting plaintiff's motion for summary judgment on the complaint and awarding plaintiff $47,523.02 in damages. Subsequent to the entry of the order in appeal No. 1, a judgment in that amount was entered in favor of plaintiff. In appeal No. 2, defendants appeal from an order denying their motion seeking "relief from the judgment or order" pursuant to CPLR 5015 and seeking leave to amend their answer pursuant to CPLR 3025 (b).
Initially, we dismiss the appeal from the order in appeal No. 1. The right to appeal from that order terminated upon entry of the judgment (see Matter of Aho , 39 N.Y.2d 241, 248, 383 N.Y.S.2d 285, 347 N.E.2d 647 [1976] ; McDonough v. Transit Rd. Apts., LLC , 164 A.D.3d 1603, 1603, 82 N.Y.S.3d 760 [4th Dept. 2018] ; see also CPLR 5501 [a] [1] ), and no appeal was taken therefrom.
With respect to appeal No. 2, we note that, inasmuch as defendants have not raised on appeal any issues with respect to the denial of that part of their motion seeking relief pursuant to CPLR 5015, they have abandoned any contentions with respect thereto (see Friscia v. Village of Geneseo , 197 A.D.3d 848, 849, 152 N.Y.S.3d 745 [4th Dept. 2021] ; Ciesinski v. Town of Aurora , 202 A.D.2d 984, 984, 609 N.Y.S.2d 745 [4th Dept. 1994] ).
We reject defendants’ contention that Supreme Court erred in denying that part of their motion seeking leave to amend their answer. "[G]enerally, leave to amend a pleading should be freely granted in the absence of prejudice to the nonmoving party where the amendment is not patently lacking in merit ..., and the decision whether to grant leave to amend a [pleading] is committed to the sound discretion of the court" ( Tag Mech. Sys., Inc. v. V.I.P. Structures, Inc. , 63 A.D.3d 1504, 1505, 880 N.Y.S.2d 437 [4th Dept. 2009] [internal quotation marks omitted]; see CPLR 3025 [b] ; Edenwald Contr. Co. v. City of New York , 60 N.Y.2d 957, 959, 471 N.Y.S.2d 55, 459 N.E.2d 164 [1983] ). Here, defendants sought leave to amend their answer to include a counterclaim based on breach of warranty. The contracts involved in the proposed counterclaim, however, were "not at issue in the complaint, and the proposed counterclaim [sought] affirmative relief unrelated to any matters addressed during the course of discovery" ( Tag Mech. Sys., Inc. , 63 A.D.3d at 1506, 880 N.Y.S.2d 437 ). Further, the proposed counterclaim would inevitably involve additional discovery and resulting delays (see Ness Tech. SARL v. Pactera Tech. Intl. Ltd. , 180 A.D.3d 607, 608, 119 N.Y.S.3d 123 [1st Dept. 2020] ).