Truebright Co., Ltd., et al., appellants, v. Roy Lester, respondent. (2011)

Supreme Court, Appellate Division, Second Department, New York.

Truebright Co., Ltd., et al., appellants, v. Roy Lester, respondent.

2010–10486 (Index No. 4409 /04)

Decided: May 17, 2011

JOSEPH COVELLO, J.P. RANDALL T. ENG CHERYL E. CHAMBERS ROBERT J. MILLER, JJ.

Werner, Zaroff, Slotnick, Stern & Ashkenazy LLP, Lynbrook, N.Y. (Howard J. Stern of counsel), and Harris D. Leinwand, New York, N.Y., for appellants (one brief filed). Catalano Gallardo & Petropoulos, LLP, Jericho, N.Y. (Matthew K. Flanagan of counsel), for respondent.

Submitted—April 26, 2011

DECISION & ORDER

In an action, inter alia, to recover damages for legal malpractice, the plaintiffs appeal from an order of the Supreme Court, Nassau County (Cozzens, Jr., J.), entered September 29, 2010, which, in effect, granted the defendant's motion for leave to amend his answer to assert the affirmative defense of lack of legal capacity to sue.

ORDERED that the order is affirmed, with costs.

Under the circumstances, the Supreme Court did not improvidently exercise its discretion when it, in effect, granted the defendant's motion for leave to amend his answer, as the proposed amendment was neither palpably insufficient nor patently devoid of merit, and there was no evidence that it would prejudice or surprise the plaintiffs (see CPLR 3025[b]; Matter of Roberts v. Borg, 35 AD3d 617, 618; Public Adm'r of Kings County v. Hossain Constr. Corp., 27 AD3d 714, 716). To the extent that the plaintiffs “wish[ ] to test the merits of the proposed added ․ defense, [they] may ․ move for summary judgment upon a proper showing” (Lucido v. Mancuso, 49 AD3d 220, 229).

COVELLO, J.P., ENG, CHAMBERS and MILLER, JJ., concur.

ENTER:

Matthew G. Kiernan

Clerk of the Court

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