Duszynski v. Allstate Ins. Co.

8 Citing cases

  1. Ray v. Watnick

    182 F. Supp. 3d 23 (S.D.N.Y. 2016)   Cited 24 times
    Holding that to establish a claim for Section 487, a plaintiff must allege facts demonstrating that the defendant is "guilty of deceit or collusion" and that the defendant intended to deceive the court or party

    And plaintiff cites to decisions of the Second and Fourth Appellate Departments to support its position that an intent to deceive—without any further "extreme" or "egregious" requirement—suffices for a plaintiff to state a claim under § 487. See Pl. Opp. Br. at 12, citing Duszynski v. Allstate Ins. Co., 107 A.D.3d 1448, 967 N.Y.S.2d 796, 798 (4th Dep't 2013) ; Dupree v. Voorhees, 102 A.D.3d 912, 959 N.Y.S.2d 235, 236 (2d Dep't 2013). However, even after Amalfitano, the First Department has repeatedly deployed the "extreme" or "egregious" standards, see, e.g.,Facebook, Inc. v. DLA Piper LLP, 23 N.Y.S.3d 173, 178, 134 A.D.3d 610 (1st Dep't 2015) ; Savitt, 5 N.Y.S.3d at 416 ; Strumwasser v. Zeiderman, 102 A.D.3d 630, 958 N.Y.S.2d 395, 396 (1st Dep't 2013), and the Fourth Department has, on at least one occasion, done so as well. SeeEnglert, 877 N.Y.S.2d at 781.

  2. Fequiere v. Lending

    14-CV-812 (RRM)(LB) (E.D.N.Y. Mar. 11, 2016)   Cited 32 times
    Holding that claim preclusion "bars federal review" of claims, including RESPA claims, "which were, or could have been brought as defenses in the State Action"

    New York courts are in general agreement that a court may consider the merits of a proposed amendment upon a motion to amend where the claims or defenses raised in the amendment are plainly without merit on their face. See 84 N.Y. Jur. 2d Pleading § 238 (2015) (noting that the merits or legal sufficiency of the proposed amendment may be examined if it is "clearly and patently insufficient on its face"); Carroll, 109 A.D.3d at 630 (noting that "the legal sufficiency or merits of a proposed amendment to a pleading" may be examined if "the insufficiency or lack of merit is clear and free from doubt"); cf. Duszynski v. Allstate Ins. Co., 107 A.D.3d 1448, 1449 (noting that a court generally "should not examine the merits or legal sufficiency of a proposed amendment unless the proposed pleading is clearly and patently insufficient on its face" (citing C.P.L.R. § 3025(b)). Fequiere's Memorandum in Opposition further clarifies the extent to which she predicates her Complaint on defendants' allegedly fraudulent conduct in procuring the Mortgage and the subsequent foreclosure, and why her claims are barred by res judicata.

  3. Brooks v. City of Buffalo

    2022 N.Y. Slip Op. 5629 (N.Y. App. Div. 2022)   Cited 4 times

    It is well settled that, "[a]lthough leave to amend a pleading should be freely granted (see CPLR 3025 [b]), it may be denied where the proposed amendment is palpably insufficient or patently devoid of merit" (Matter of DeCarr v Zoning Bd. of Appeals for Town of Verona, 154 A.D.3d 1311, 1314 [4th Dept 2017] [internal quotation marks omitted]; see Davis v South Nassau Communities Hosp., 26 N.Y.3d 563, 580 [2015]; Landco H & L, Inc. v 377 Main Realty, Inc., 203 A.D.3d 1601, 1602-1603 [4th Dept 2022]). Additionally, it is equally well settled that "the decision whether to grant leave to amend a [pleading] is committed to the sound discretion of the court" (Pink v Ricci, 100 A.D.3d 1446, 1448 [4th Dept 2012] [internal quotation marks omitted]; see Christian v Brookdale Senior Living Communities, Inc., 199 A.D.3d 1450, 1451 [4th Dept 2021]; Duszynski v Allstate Ins. Co., 107 A.D.3d 1448, 1449 [4th Dept 2013]).

  4. Christian v. Brookdale Senior Living Cmtys., Inc.

    199 A.D.3d 1450 (N.Y. App. Div. 2021)   Cited 2 times

    We affirm. "Although leave to amend a pleading should be freely granted (see CPLR 3025 [b] ), it may be denied where the proposed amendment is palpably insufficient or patently devoid of merit" ( Matter ofDeCarr v. Zoning Bd. of Appeals for Town of Verona , 154 A.D.3d 1311, 1314, 62 N.Y.S.3d 244 [4th Dept. 2017] [internal quotation marks omitted]; seePink v. Ricci , 100 A.D.3d 1446, 1448-1449, 954 N.Y.S.2d 306 [4th Dept. 2012] ; J.K. Tobin Constr. Co., Inc. v. David J. Hardy Constr. Co., Inc. , 64 A.D.3d 1206, 1209, 883 N.Y.S.2d 681 [4th Dept. 2009] ), and "the decision whether to grant leave to amend a [pleading] is committed to the sound discretion of the court" ( Pink , 100 A.D.3d at 1449, 954 N.Y.S.2d 306 [internal quotation marks omitted]; seeDuszynski v. Allstate Ins. Co. , 107 A.D.3d 1448, 1449, 967 N.Y.S.2d 796 [4th Dept. 2013] ; Carro v. Lyons Falls Pulp & Paper, Inc. , 56 A.D.3d 1276, 1277, 867 N.Y.S.2d 646 [4th Dept. 2008] ). Here, we conclude that Supreme Court did not abuse its discretion in declining to grant leave to amend the answer inasmuch as the proposed amendment is palpably insufficient or patently devoid of merit.

  5. Christian v. Brookdale Senior Living Cmtys.

    No. 2021-06497 (N.Y. App. Div. Nov. 19, 2021)

    , it may be denied where the proposed amendment is palpably insufficient or patently devoid of merit" (Matter of DeCarr v Zoning Bd. of Appeals for Town of Verona, 154 A.D.3d 1311, 1314 [4th Dept 2017] [internal quotation marks omitted]; see Pink v Ricci, 100 A.D.3d 1446, 1448-1449 [4th Dept 2012]; J.K. Tobin Constr. Co., Inc. v David J. Hardy Constr. Co., Inc., 64 A.D.3d 1206, 1209 [4th Dept 2009]), and "the decision whether to grant leave to amend a [pleading] is committed to the sound discretion of the court" (Pink, 100 A.D.3d at 1449 [internal quotation marks omitted]; see Duszynski v Allstate Ins. Co., 107 A.D.3d 1448, 1449 [4th Dept 2013]; Carro v Lyons Falls Pulp & Paper, Inc., 56 A.D.3d 1276, 1277 [4th Dept 2008]). Here, we conclude that Supreme Court did not abuse its discretion in declining to grant leave to amend the answer inasmuch as the proposed amendment is palpably insufficient or patently devoid of merit

  6. Great Lakes Motor Corp. v. Johnson

    156 A.D.3d 1369 (N.Y. App. Div. 2017)   Cited 15 times

    "In [the] proposed amended complaint, plaintiff alleges that, as a result of [the conduct of defendant and Superior], [plaintiff] was damaged. On this record, we cannot conclude that plaintiff's allegation of damages is patently lacking in merit" ( Duszynski v. Allstate Ins. Co. , 107 A.D.3d 1448, 1450, 967 N.Y.S.2d 796 [4th Dept. 2013] ). Moreover, although plaintiff did not suffer any "chargeback[s]" from Mercedes–Benz, USA (MBUSA), deposition testimony of "the export sales compliance specialist" for MBUSA established that there were many other items of "financial loss" suffered by dealers as a result of the violation of Nonexport Agreements (seeHolloway Auto. Group v. Giacalone , 169 N.H. 623, 625–626, 154 A.3d 1246, 1248 [2017] ).

  7. Murphy v. Kozlowska

    2022 N.Y. Slip Op. 32947 (N.Y. Sup. Ct. 2022)   Cited 1 times

    "A violation of Judiciary Law § 487 may be established either by the defendant's alleged deceit or by an alleged chronic, extreme pattern of legal delinquency by the defendant." Duszynski v. Allstate Ins. Co., 107 A.D.3d 1448, 1449 (4th Dep't 2013). Plaintiff does not set forth any evidence to show how defendants' conduct was deceitful, nor how plaintiff was misled by defendants' conduct.

  8. Christian v. Brookdale Senior Living Cmtys.

    2021 N.Y. Slip Op. 6497 (N.Y. Sup. Ct. 2021)

    We affirm. "Although leave to amend a pleading should be freely granted (see CPLR 3025 [b]), it may be denied where the proposed amendment is palpably insufficient or patently devoid of merit" (Matter of DeCarr v Zoning Bd. of Appeals for Town of Verona, 154 A.D.3d 1311, 1314 [4th Dept 2017] [internal quotation marks omitted]; see Pink v Ricci, 100 A.D.3d 1446, 1448-1449 [4th Dept 2012]; J.K. Tobin Constr. Co., Inc. v David J. Hardy Constr. Co., Inc., 64 A.D.3d 1206, 1209 [4th Dept 2009]), and "the decision whether to grant leave to amend a [pleading] is committed to the sound discretion of the court" (Pink, 100 A.D.3d at 1449 [internal quotation marks omitted]; see Duszynski v Allstate Ins. Co., 107 A.D.3d 1448, 1449 [4th Dept 2013]; Carro v Lyons Falls Pulp & Paper, Inc., 56 A.D.3d 1276, 1277 [4th Dept 2008]). Here, we conclude that Supreme Court did not abuse its discretion in declining to grant leave to amend the answer inasmuch as the proposed amendment is palpably insufficient or patently devoid of merit.