Gallagher v. 109-02 Development, LLC

Gallagher v 109-02 Dev., LLC (2016 NY Slip Op 02050)

Gallagher v 109-02 Dev., LLC

2016 NY Slip Op 02050

Decided on March 23, 2016

Appellate Division, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on March 23, 2016 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
JOHN M. LEVENTHAL, J.P.
THOMAS A. DICKERSON
COLLEEN D. DUFFY
HECTOR D. LASALLE, JJ.

2014-02240
(Index No. 27449/11)

[*1]Brian Gallagher, et al., respondents,

v

109-02 Development, LLC, appellant, et al., defendants.

Andrea G. Sawyers, Melville, NY (Scott W. Driver of counsel), for appellant.

Edward J. Troy, Greenlawn, NY (Patrick J. Morganelli of counsel), for respondents.

DECISION & ORDER

In an action to recover damages for personal injuries, etc., the defendant 109-02 Development, LLC, appeals, as limited by its brief, from so much of an order of the Supreme Court, Queens County (Lane, J.), dated November 22, 2013, as granted the plaintiffs' cross motion for leave to amend the pleadings.

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

"Leave to amend a pleading should be freely given (see CPLR 3025[b]), provided the amendment is not palpably insufficient, does not prejudice or surprise the opposing party, and is not patently devoid of merit" (Maspeth Fed. Sav. & Loan Assn. v Simon-Erdan, 67 AD3d 750, 751; see United Fairness, Inc. v Town of Woodbury, 113 AD3d 754, 755). The "merits of a proposed amendment to a pleading will not be examined unless the insufficiency or lack of merit is clear and free from doubt" (Sample v Levada, 8 AD3d 465, 467-468).

Here, the proposed amendments were not palpably insufficient or patently devoid of merit, and they did not prejudice or surprise the defendants, since they merely sought to add new theories of recovery, without alleging new or different facts. Thus, the Supreme Court providently exercised its discretion in granting the cross motion for leave to amend (see id. at 467-468).

We do not address the plaintiffs' argument made in Point I of their brief, since the plaintiffs did not file a notice of appeal from the order dated November 22, 2013 (see generally Matter of Margary v Martinez, 118 AD3d 1004, 1006).

LEVENTHAL, J.P., DICKERSON, DUFFY and LASALLE, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court