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Guiliano v. Carlisle

Appellate Division of the Supreme Court of New York, Second Department
Jul 8, 2002
296 A.D.2d 438 (N.Y. App. Div. 2002)

Opinion

2001-03947

Argued June 6, 2002.

July 8, 2002.

In an action, inter alia, to recover damages for breach of contract, the defendant Law Firm of Howard Mann appeals, as limited by its brief, from so much of an order of the Supreme Court, Rockland County (Nelson, J.), entered March 26, 2001, as granted that branch of the plaintiff's motion which was for leave to amend his complaint to add new claims against it, and granted that branch of the motion of the defendant Highview-Nyack Properties, Inc., which was for leave to amend its answer to add a new cross claim against it.

Housman Hellman, New York, N.Y. (Mark E. Housman and Brett G. Canna of counsel), for appellant.

Victoria M. Brown, LLC, New York, N.Y., for plaintiff-respondent.

Wrobel Markham Schatz, LLP, New York, N.Y. (Daniel F. Markham of counsel), for defendant-respondent.

Before: ANITA R. FLORIO, J.P., WILLIAM D. FRIEDMANN, HOWARD MILLER, STEPHEN G. CRANE, JJ.


DECISION ORDER

ORDERED that the order is affirmed insofar as appealed from, with one bill of costs.

The determination whether to grant leave to amend a pleading is within the sound discretion of the court (see Mayers v. D'Agostino, 58 N.Y.2d 696, 698), to be determined on a case-by-case basis. Not only is the determination to grant leave to amend discretionary, but such a determination "will not lightly be set aside" (Beuschel v. Malm, 114 A.D.2d 569; see Napoli v. Canada Dry Bottling Co. of N.Y., 166 A.D.2d 696; Ross v. Ross, 143 A.D.2d 429). Leave to amend a pleading should be freely given absent prejudice or surprise (see CPLR 3025[b]; McCaskey, Davies Assoc. v. New York City Health Hosps. Corp., 59 N.Y.2d 755, 757). Where such pleadings are devoid of merit, leave should be denied (see Frost v. Monter, 202 A.D.2d 632).

The appellant failed to establish prejudice or surprise, and the claims in the proposed amended pleadings are not devoid of merit. Therefore, the Supreme Court properly granted that branch of the plaintiff's motion which was for leave to amend his complaint to add new claims against the appellant, and properly granted that branch of the motion of the defendant Highview-Nyack Properties, Inc., which was for leave to amend its answer to add a new cross claim against the appellant.

The appellant's remaining contentions are without merit.

FLORIO, J.P., FRIEDMANN, H. MILLER and CRANE, JJ., concur.


Summaries of

Guiliano v. Carlisle

Appellate Division of the Supreme Court of New York, Second Department
Jul 8, 2002
296 A.D.2d 438 (N.Y. App. Div. 2002)
Case details for

Guiliano v. Carlisle

Case Details

Full title:BIAGIO GUILIANO, ETC., plaintiff-respondent, v. RAYMOND G. CARLISLE, ETC.…

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Jul 8, 2002

Citations

296 A.D.2d 438 (N.Y. App. Div. 2002)
744 N.Y.S.2d 895

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