16 WEST 8TH LLC v. GLUCKMAN (2023)

Order, Supreme Court, New York County (Richard Latin, J.), entered September 1, 2022, which denied plaintiff's motion to amend the complaints to add a claim for gross negligence, unanimously affirmed, with costs.

Supreme Court providently exercised its discretion in denying plaintiff's motion for leave to amend the complaints to add a claim for gross negligence.  Contrary to plaintiff's contention, even assuming that the amendment would not prejudice defendants, that alone is insufficient to mandate granting leave to amend, as leave will be denied if the proposed amendment is “palpably insufficient or patently devoid of merit” (MBIA Ins. Corp. v. Greystone & Co., Inc., 74 A.D.3d 499, 500, 901 N.Y.S.2d 522 [1st Dept. 2010]).

Plaintiff's gross negligence claim is patently devoid of merit because it fails to plead a legal duty independent of the duties derived from plaintiff's contractual easement rights (see e.g. Clark–Fitzpatrick, Inc. v. Long Is. R. Co., 70 N.Y.2d 382, 389, 521 N.Y.S.2d 653, 516 N.E.2d 190 [1987]).  Plaintiff's claims stem from defendants’ respective decisions to perform construction work in contravention of the terms of the contractual easements.  As such, plaintiff fails to allege a violation of a legal duty independent of that created in the parties’ easements (see Givoldi, Inc. v. United Parcel Serv., 286 A.D.2d 220, 221, 729 N.Y.S.2d 25 [1st Dept. 2001]).

We have considered plaintiff's remaining contentions and find them unavailing.