Amendment of a Pleading

“palpably insufficient or patently without merit”

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In 1934 Bedford, LLC v Gutman Weiss, P.C., 2023 NY Slip Op 04558 [2d Dept Sept. 13, 2023], the court held that the client’s complaint could not be amended where the proposed amendment was “palpably insufficient or patently without merit,” holding:

Although leave to amend a pleading should be freely given in the absence of prejudice or surprise to the opposing party (see id.), a motion for leave to amend should be denied where the proposed amendment is palpably insufficient or patently devoid of merit (see Buccigrossi v. Glatman, 214 A.D.3d 696, 183 N.Y.S.3d 317; Silverman v. Potruch & Daab, LLC, 142 A.D.3d 660, 661, 37 N.Y.S.3d 143; Pedote v. Kelly, 124 A.D.3d 855, 856, 3 N.Y.S.3d 56; Lucido v. Mancuso, 49 A.D.3d 220, 229, 851 N.Y.S.2d 238). “A determination whether to grant such leave is within the Supreme Court’s broad discretion, and the exercise of that discretion will not be lightly disturbed” (Gitlin v. Chirinkin, 60 A.D.3d 901, 902, 875 N.Y.S.2d 585; see U.S. Bank N.A. v. Cuesta, 208 A.D.3d 821, 822, 172 N.Y.S.3d 638; Johnson v. Ortiz Transp., LLC, 205 A.D.3d 696, 697, 165 N.Y.S.3d 735).

Here, the Supreme Court providently exercised its discretion in denying that branch of the plaintiffs’ motion which was pursuant to CPLR 3025(b) for leave to amend the complaint, as the proposed amendment was palpably insufficient or patently without merit.

Richard A. Klass, Esq.
Your Court Street Lawyer

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Richard A. Klass, Esq., maintains a law firm engaged in civil litigation at 16 Court Street, 28th Floor, Brooklyn, New York. He may be reached at (718) COURT●ST or RichKlass@courtstreetlaw.comcreate new email with any questions.

Prior results do not guarantee a similar outcome.

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Plaintiffs Should Be Permitted to Amend the Complaint Pursuant to CPLR 3025

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Civil Practice Law and Rules [CPLR] Section 3025 authorizes the amendment of a pleading in an action, including the Complaint of the plaintiff. According to subsection (b) of CPLR 3025, leave of court is needed to amend a pleading once issue has joined; however, it should be freely given to a party.

New York courts have held that, in the absence of prejudice to the defendant, the amendment of a pleading should be freely granted by a court. See, Kushner v. Queens Transit, 97 AD2d 432 (2d Dept. 1983); Sotomayor v. Princeton Ski Outlet Corp., 199 AD2d 197 (1st Dept. 1993). It is also well established law that a motion to amend a pleading should be freely given absent a showing by an opposing party of surprise or prejudice. Zacher v. Oakdale Islandia Ltd. Partnership, 211 AD2d 712 (2d Dept. 1995); Santori v. Met Life, 11 AD3d 597 (2d Dept. 2004).

In a recent case litigated by Richard A. Klass, Your Court Street Lawyer, it was urged that, since the action had not been pending for a significant period of time, and was not on the eve of trial, no prejudice could be shown by defendants to the amendment of the Complaint. See, e.g., Kopel v. Chiulli, 175 AD2d 102 (2d Dept. 1991). Case law has held that delay in seeking to amend the Complaint does not bar such relief. Haven Associates v. Douro Realty Corp., 96 AD2d 526 (2d Dept. 1983).

Finally, Plaintiff provided the trial court with a copy of the proposed Amended Complaint to be served upon the defendants. See, Anderson Properties Inc. v. Sawhill Tubular Division Cyclops Corp., 149 AD2d 949 (4th Dept. 1989).

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