Joan Jenal, et al., respondents, v. Scott Brown, et al., defendants;  Town of Babylon, nonparty-appellant. (2011)

Submitted-January 5, 2011

DECISION & ORDER

In an action to recover damages for personal injuries, etc., nonparty Town of Babylon appeals from an order of the Supreme Court, Nassau County (Woodard, J.), dated June 10, 2010, which granted the plaintiffs' motion for leave to serve an amended complaint adding it as a defendant.

ORDERED that the order is reversed, on the law, with costs, and the plaintiffs' motion for leave to serve an amended complaint adding the Town of Babylon as a defendant is denied.

While leave to serve an amended pleading should be freely given upon such terms as are just (see CPLR 3025[b];  Edenwald Contr.   Co. v. City of New York, 60 N.Y.2d 957;  AYW Networks v Teleport Communications Group, 309 A.D.2d 724;  Charleson v. City of Long Beach, 297 A.D.2d 777;  Holchendler v. We Transp., 292 A.D.2d 568), leave should not be granted where “the proposed amendment is palpably insufficient as a matter of law or is totally devoid of merit” (Morton v. Brookhaven Mem. Hosp., 32 AD3d 381, 381;  see Thone v. Crown Equip.   Corp., 27 AD3d 723).   Here, the proposed amendment was clearly without merit as the plaintiffs' motion was made nearly one year after the statute of limitations had expired, and there was no basis in the record to support a claim that the Town of Babylon should be estopped from relying upon the expiration of the statute of limitations (see Luka v. New York City Tr. Auth., 100 A.D.2d 323, 325, affd 63 N.Y.2d 667;  Yassin v. Sarabu, 284 A.D.2d 531;  Nowinski v. City of New York, 189 A.D.2d 674, 675).

DILLON, J.P., LEVENTHAL, BELEN and COHEN, JJ., concur.

ENTER:

Matthew G. Kiernan

Clerk of the Court