1934 BEDFORD LLC v. GUTMAN WEISS (2023)

DECISION & ORDER

In an action to recover damages for legal malpractice, the plaintiffs appeal from an order of the Supreme Court, Kings County (Reginald A. Boddie, J.), dated March 10, 2022.  The order, insofar as appealed from, denied that branch of the plaintiffs’ motion which was pursuant to CPLR 3025(b) for leave to amend the complaint.

ORDERED that the order is affirmed insofar as appealed from, with costs.

In March 2021, the plaintiffs commenced this action to recover damages for legal malpractice against the defendants, their former attorneys, who represented the plaintiffs in connection with obtaining financing to develop certain real property located in Brooklyn.  In an order dated October 28, 2021, the Supreme Court granted the defendants’ motion pursuant to CPLR 3211(a)(1) and (7) to dismiss the complaint.  Thereafter, the plaintiffs moved, inter alia, pursuant to CPLR 3025(b) for leave to amend the complaint.  The court denied that branch of the plaintiffs’ motion.  The plaintiffs appeal.

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.  The proposed amendment failed to sufficiently allege that “but for” the defendants’ alleged negligence, the plaintiffs “would not have incurred any damages” (Rudolf v. Shayne, Dachs, Stanisci, Corker & Sauer, 8 N.Y.3d 438, 442, 835 N.Y.S.2d 534, 867 N.E.2d 385;  see Nomura Asset Capital Corp. v. Cadwalader, Wickersham & Taft LLP, 26 N.Y.3d 40, 49–50, 41 N.E.3d 353;  McCoy v. Feinman, 99 N.Y.2d 295, 301–302, 755 N.Y.S.2d 693, 785 N.E.2d 714).

IANNACCI, J.P., CHRISTOPHER, FORD and WAN, JJ., concur.