MANUFACTURERS TRADERS TRUST COMPANY v. Fru-Con/Fluor Daniel Joint Venture, Defendant-Respondent. (2004)

 Supreme Court properly denied the motion of O'Brien & Gere Technical Services, Inc. (defendant) seeking leave to amend its answer after its motion for summary judgment was denied, and after the cross motion of defendant Fru-Con/Fluor Daniel Joint Venture (Joint Venture) for summary judgment was granted following an appeal by Joint Venture to this Court (Manufacturers & Traders Trust Co. v. Reliance Ins. Co., 303 A.D.2d 1002, 757 N.Y.S.2d 404).   Although leave to amend should be freely granted, it is properly denied where the proposed amendment is lacking in merit (see Christiano v. Chiarenza, 1 A.D.3d 1039, 767 N.Y.S.2d 377;  Fingerlakes Chiropractic v. Maggio, 269 A.D.2d 790, 791, 703 N.Y.S.2d 632).   Here, the proposed amendments concerning the defenses of waiver and judicial estoppel are lacking in merit (see generally Enright v. Nationwide Ins. [appeal No. 2], 295 A.D.2d 980, 743 N.Y.S.2d 786;  Abramovich v. Harris, 227 A.D.2d 1000, 643 N.Y.S.2d 811).   Further, defendant failed to raise those defenses when its motion for summary judgment and Joint Venture's cross motion for summary judgment were before the court two years earlier, and defendant has failed to establish a reasonable excuse for the delay (see Jablonski v. County of Erie, 286 A.D.2d 927, 928, 730 N.Y.S.2d 626).

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously affirmed with costs.

MEMORANDUM: