Tarantini v. Russo Realty Corp. , 684 N.Y.S.2d 890 ( 1999 )

—In an action, inter alia, to establish title to certain real property by adverse possession, the defendant Russo Realty Corp. appeals from an order of the Supreme Court, Suffolk County (Kitson, J.), dated June 15, 1998, which denied its motion for leave to amend its answer to interpose as a fifth affirmative defense that the action seeks to deprive it of its rights in the property in violation of its substantive due process rights.

Ordered that the order is affirmed, without costs or disbursements.

Motions for leave to amend pleadings are to be liberally granted absent prejudice or surprise resulting directly from the delay (see, CPLR 3025 [b]; McCaskey, Davies & Assocs. v New York City Health & Hosps. Corp., 59 NY2d 755, 757; Fa-hey v County of Ontario, 44 NY2d 934, 935). However, where the proposed amendment is palpably insufficient as a matter of law or is totally devoid of merit, leave should be denied (see, Alejandro v Riportella, 250 AD2d 556; Sentry Ins. Co. v KeroSun, Inc., 122 AD2d 204; Norman v Ferrara, 107 AD2d 739). Here, the appellant’s proposed defense, that the plaintiffs action violates its substantive due process rights under the Federal and State Constitutions, is insufficient as a matter of law, as it failed to identify any government action against it which would involve those rights. Therefore, the motion for leave to amend the answer was properly denied. O’Brien, J. P., Ritter, Joy and Altman, JJ., concur.