Opinion
2014-12-2
TRI–TEC DESIGN, INC., Plaintiff–Appellant, v. ZATEK CORPORATION, Defendant–Respondent.
Meyers, Saxon & Cole, Brooklyn (Margaret J. Leszkiewicz of counsel), for appellant. Thomas Torto, New York, for respondent.
Meyers, Saxon & Cole, Brooklyn (Margaret J. Leszkiewicz of counsel), for appellant. Thomas Torto, New York, for respondent.
MAZZARELLI, J.P., ACOSTA, SAXE, CLARK, KAPNICK, JJ.
Order, Supreme Court, New York County (Anil C. Singh, J.), entered June 28, 2013, which granted defendant's motion to amend its answer to include two counterclaims, unanimously affirmed, without costs.
“Leave to amend the pleadings ‘shall be freely given’ absent prejudice or surprise resulting directly from the delay” (McCaskey, Davies & Assoc. v. New York City Health & Hosps. Corp., 59 N.Y.2d 755, 757, 463 N.Y.S.2d 434, 450 N.E.2d 240 [1983] [citations omitted] ). Mere delay in seeking to amend a pleading does not warrant denial of the motion, in the absence of prejudice (Cherebin v. Empress Ambulance Serv., Inc., 43 A.D.3d 364, 365, 841 N.Y.S.2d 277 [1st Dept.2007] ). The type of prejudice necessary to warrant denial of the motion “requires some indication that the [opposing party] has been hindered in the preparation of [its] case or has been prevented from taking some measure in support of [its] position” (Kocourek v. Booz Allen Hamilton Inc., 85 A.D.3d 502, 504, 925 N.Y.S.2d 51 [1st Dept.2011] ). Plaintiffhas failed to demonstrate any such prejudice or surprise. Plaintiff's assertion of additional costs for discovery associated with the counterclaims is insufficient, as such costs would have been necessary even if the counterclaims were asserted with the initial answer.
Defendant's counterclaims for breach of contract and consequential damages associated with the alleged breach are not “ ‘palpably insufficient or clearly devoid of merit’ ” (Miller v. Cohen, 93 A.D.3d 424, 425, 939 N.Y.S.2d 424 [1st Dept.2012]; see also MBIA Ins. Corp. v. Greystone & Co., Inc., 74 A.D.3d 499, 500, 901 N.Y.S.2d 522 [1st Dept.2010] ).
We have examined plaintiff's remaining arguments, and find them unavailing.