MICHAEL ANDERSON PLAINTIFF RESPONDENT v. JOSEPH LADUE SUSAN JAMES AND CENTER FOR COMMUNITY ALTERNATIVES DEFENDANTS APPELLANTS

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

MICHAEL ANDERSON, PLAINTIFF-RESPONDENT, v. JOSEPH LADUE, SUSAN JAMES AND CENTER FOR COMMUNITY ALTERNATIVES, DEFENDANTS-APPELLANTS.

CA 10-01339

Decided: December 30, 2010

PRESENT:  SMITH, J.P., PERADOTTO, CARNI, LINDLEY, AND SCONIERS, JJ. TAYLOR & ASSOCIATES, ALBANY (KEITH M. FRARY OF COUNSEL), FOR DEFENDANTS-APPELLANTS.

MEMORANDUM AND ORDER

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

Memorandum:  Defendants appeal from an order that, inter alia, denied their motion for summary judgment dismissing the pro se complaint and granted plaintiff's cross motion for leave to amend the complaint.   We affirm.   In support of their motion, defendants submitted documentary evidence tending to show that the allegedly improper disclosure of confidential information could not have occurred on the date set forth in the complaint.   In response to the motion, which was filed before any discovery had been conducted, plaintiff acknowledged that the disclosure occurred the day after that alleged in the complaint, and he therefore cross-moved for leave to amend the complaint to correct that date.   Defendants failed to submit any evidence with respect to the merits of the causes of action asserted in the complaint, and thus they failed to establish their entitlement to judgment as a matter of law dismissing the complaint (see generally Zuckerman v. City of New York, 49 N.Y.2d 557, 562).   Contrary to the contention of defendants, Supreme Court properly granted the cross motion inasmuch as they are not prejudiced by the proposed amendment to the complaint (see generally CPLR 3025[b];  First Sealord Sur., Inc. v. Vesta 24 LLC, 55 AD3d 423).

Patricia L. Morgan

Clerk of the Court