Opinion
Submitted January 26, 2000
March 13, 2000
In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Suffolk County (Seidell, J.), dated January 4, 1999, which granted the defendants' motion for leave to amend the answer to assert the affirmative defense of the Statute of Limitations, and to dismiss the complaint.
Sanford L. Pirotin, P.C., Westbury, N.Y. (Robert T. Bean of counsel), for appellant.
Devitt, Spellman, Barrett, Callahan, Leyden Kenney, LLP, Smithtown, N.Y. (Patricia A. O'Connor of counsel), for respondents.
GUY JAMES MANGANO, P.J., FRED T. SANTUCCI, GABRIEL M. KRAUSMAN ANITA R. FLORIO, ROBERT W. SCHMIDT, JJ.
DECISION ORDER
ORDERED that the order is reversed, on the law, with costs, the motion is denied, and the complaint is reinstated.
While leave to amend a pleading should be freely given (see, CPLR 3025 N.Y.CPLR[b]), the decision whether to grant such leave is within the court's discretion (see, Edenwald Contr. Co. v. City of New York, 60 N.Y.2d 957, 959; Mayers v. D'Agostino, 58 N.Y.2d 696). However, where the proposed amendment is palpably insufficient as a matter of law or is totally devoid of merit, leave should be denied (see, Tarantini v. Russo Realty Corp., 259 A.D.2d 484; Alejandro v. Riportella, 250 A.D.2d 556; Sentry Ins. Co. v. Kero-Sun, Inc., 122 A.D.2d 204). Contrary to the defendants' contention, the Statute of Limitations was tolled for the applicable period of infancy even though the infant plaintiff timely filed a notice of claim pursuant to General Municipal Law § 50-e Gen. Mun. (see, Henry v. City of New York, N.Y.2d [Dec. 20, 1999]; CPLR 208 N.Y.CPLR).
MANGANO, P.J., SANTUCCI, KRAUSMAN, FLORIO, and SCHMIDT, JJ., concur.