Merchants National Bank v. Duplex Truck & Equipment Sales, Inc.

Order unanimously reversed, with costs, and motion granted. The amended third-party complaint shall be served within 20 days after entry of the order herein. Memorandum: Appellant seeks to serve an amended third-party complaint and to add as additional third-party defendants, the executors of the" will of the owner of a majority of the stock of the present third-party defendant corporations. The proposed pleading alleges that the decedent owned or controlled the stock of the primary defendant and the proposed third-party complaint seeks to have the corporate structure pierced and the estate indemnify appellant against any liability. Leave to amend should be freely given (CPLR 3025, subd. [b]) and, since no prejudice is claimed to result from the amendment, we reverse because it cannot be said that the proposed amended complaint is “ palpably insufficient.” (Cf. Norton v. Norton, 12 A D 2d 1003.) We likewise hold that appellant’s motion to add the additional third-party defendants should be granted and, under the circumstances, appellant should have an opportunity to assert his claim and the third-party defendants to make such motions against it as they may deem advisable. (6 Carmody-Wait 2d, New York Practice, pp. 86-89; Martin v. Katz, 15 A D 2d 767; Grandview Constr. Corp. v. Roreck Constr. Co., 14 A D 2d 909.) In granting this motion we are not passing upon the sufficiency or merits of the proposed pleading. (Amherst Bowling Center v. Dolce, 11 A D 2d 1079.) (Appeal from order of Onondaga Special Term denying motion to amend complaint and add parties in action on promissory note.) Present— Goldman, P. J., Marsh, Gabrielli, Moule and Bastow, JJ.