BRETON v. DISHI (2025)

Order, Supreme Court, New York County (Lynn R. Kotler, J.), entered October 19, 2023, which granted defendant's motion under CPLR 3025(b) to amend his answer to assert a counterclaim for fraud, unanimously reversed, on the law, and the motion denied, without costs.

Supreme Court should have denied the motion to amend, as the proposed answer, which sought to interpose a counterclaim for fraud, was patently devoid of merit (see Ferrer v. Go N.Y. Tours, Inc., 221 A.D.3d 499, 500, 198 N.Y.S.3d 345 [1st Dept. 2023]).  The proposed counterclaim is based on allegations that the complaint, which seeks to recover damages for personal injuries, is based on misrepresentations and that plaintiff intended to induce defendant to rely on those misrepresentations so that the parties would settle the action.  However, the counterclaim fails to plead the essential element of justifiable reliance with sufficient particularity (CPLR 3016[b];  see Eurycleia Partners, LP v. Seward & Kissel, LLP, 12 N.Y.3d 553, 559, 883 N.Y.S.2d 147, 910 N.E.2d 976 [2009]).  In any event, the record makes clear that defendant has not, in fact, relied on plaintiff's alleged misrepresentations, but instead has denied them in his answer and throughout the litigation (see Republic of Kazakhstan v. Chapman, 217 A.D.3d 515, 517, 191 N.Y.S.3d 374 [1st Dept. 2023];  Dashdevs LLC v. Capital Mkts. Placement, Inc., 210 A.D.3d 525, 526, 179 N.Y.S.3d 29 [1st Dept. 2022]).

Nor did defendant plead damages with sufficient particularity, alleging only that he has incurred significant sums in defending the action (see Makhnevich v. Board of Mgrs. of 2900 Ocean Condominium, 217 A.D.3d 630, 632, 193 N.Y.S.3d 9 [1st Dept. 2023]).  To the extent defendant is claiming that he has been damaged by having incurred litigation costs as a result of plaintiff's pursuing a fraudulent or frivolous claim, his remedy would be to seek sanctions under CPLR 8303–a;  however, that provision does not support an independent cause of action (see Calastri v. Overlock, 125 A.D.3d 554, 555, 5 N.Y.S.3d 24 [1st Dept. 2015]).

Defendant's proposed pleading also cannot be construed as stating a valid claim for malicious prosecution because this action has not yet terminated favorably to defendant and thus, any such claim would be premature (see id. at 554–555, 5 N.Y.S.3d 24;  Park v. State, 226 A.D.2d 153, 153, 640 N.Y.S.2d 100 [1st Dept. 1996]).