GLASER v. COUNTY OF ORANGE (2005)

In an action, inter alia, to recover damages for wrongful death, the defendant County of Orange appeals from an order of the Supreme Court, Orange County (Slobod, J.), dated May 19, 2003, which denied its motion for leave to serve an amended answer.

ORDERED that the order is reversed, on the law and as a matter of discretion, without costs or disbursements, the motion is granted, and the amended answer annexed to the reply papers submitted in the Supreme Court, Orange County, is deemed served.

 Motions for leave to amend pleadings are to be liberally granted absent prejudice or surprise resulting from the delay (see Crystal House Manor v. Totura, 5 A.D.3d 425, 772 N.Y.S.2d 603;  Tarantini v. Russo Realty Corp., 273 A.D.2d 458, 712 N.Y.S.2d 358).   However, a proposed amendment that is totally devoid of merit or palpably insufficient as a matter of law will not be allowed (see Probst v. Cacoulidis, 295 A.D.2d 331, 743 N.Y.S.2d 509).

 We exercise our discretion to grant the motion of the defendant County of Orange for leave to serve an amended answer.   The defense of qualified immunity was not totally devoid of merit or palpably insufficient as a matter of law.   The motion was made prior to the conclusion of discovery and the plaintiff failed to demonstrate any prejudice (see USA Nutritionals v. Pharmalife, Inc., 293 A.D.2d 526, 740 N.Y.S.2d 133;  Hilltop Nyack Corp. v. TRMI Holdings, 275 A.D.2d 440, 712 N.Y.S.2d 888).