BRYNDLE v. SAFETY KLEEN SYSTEMS INC (2009)

Supreme Court neither abused nor improvidently exercised its discretion in granting that part of the cross motion of defendant for leave to amend its answer. “Leave to amend the pleadings ‘shall be freely given’ absent prejudice or surprise resulting directly from the delay” (McCaskey, Davies & Assoc. v. New York City Health & Hosps. Corp., 59 N.Y.2d 755, 757, 463 N.Y.S.2d 434, 450 N.E.2d 240; see CPLR 3025[b]; Fahey v. County of Ontario, 44 N.Y.2d 934, 935, 408 N.Y.S.2d 314, 380 N.E.2d 146), and “the denial of leave to amend is not an abuse of discretion where ․ the proposed amendment[ ] manifestly lack[s] merit or [is] palpably insufficient on [its] face” (Dec v. Auburn Enlarged School Dist., 249 A.D.2d 907, 908, 672 N.Y.S.2d 591 [internal quotation marks omitted] ). “Prejudice may be found where a party has incurred some change in position or hindrance in the preparation of its case which could have been avoided had the original pleading contained the proposed amendment” (Whalen v. Kawasaki Motors Corp., U.S.A., 92 N.Y.2d 288, 293, 680 N.Y.S.2d 435, 703 N.E.2d 246; see Loomis v. Civetta Corinno Constr. Corp., 54 N.Y.2d 18, 23-24, 444 N.Y.S.2d 571, 429 N.E.2d 90, rearg. denied 55 N.Y.2d 801, 447 N.Y.S.2d 436, 432 N.E.2d 138). Although the delay of defendant in seeking leave to amend its answer was lengthy, “ ‘[m]ere lateness is not a barrier to the amendment. It must be lateness coupled with significant prejudice to the other side, the very elements of the laches doctrine’ “ (Edenwald Contr. Co. v. City of New York, 60 N.Y.2d 957, 959, 471 N.Y.S.2d 55, 459 N.E.2d 164; see McFarland v. Michel, 2 A.D.3d 1297, 1300, 770 N.Y.S.2d 544).

Here, plaintiff failed to identify any prejudice arising from the proposed amendment (see Corsale v. Pantry Pride Supermarket, 197 A.D.2d 659, 660-661, 602 N.Y.S.2d 887), and the evidence submitted by defendant in support of its cross motion established that its proposed additional defense that plaintiff's claims were discharged in bankruptcy is not patently without merit (see Debicki v. Schultz, 212 A.D.2d 988, 623 N.Y.S.2d 456).

It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.

MEMORANDUM: