MOYSE v. LLC

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

Patrick MOYSE, plaintiff, v. Jacob WAGNER, appellant, Poritz and Associates, LLC, et al., respondents, et al., defendant.

Decided: October 27, 2009

WILLIAM F. MASTRO, J.P., RUTH C. BALKIN, THOMAS A. DICKERSON, and PLUMMER E. LOTT, JJ. Ronald J. Mazzucco, Staten Island, N.Y., for appellant. Harvey Gladstein & Partners, LLC, New York, N.Y. (John J. Bruno and Jan B. Rothman of counsel), for respondents.

In an action to recover damages for personal injuries, the defendant Jacob Wagner appeals from so much of an order of the Supreme Court, Richmond County (McMahon, J.), dated October 17, 2008, as denied his motion for leave to amend his answer to assert a cross claim for indemnification against the defendants Poritz and Associates, LLC, and Alan Poritz.

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

Contrary to the contention of the defendant Jacob Wagner, the Supreme Court properly denied his motion for leave to amend his answer to assert a cross claim for indemnification against the defendants Poritz and Associates, LLC, and Alan Poritz (hereinafter together the Poritz defendants).   Leave to amend a pleading “shall be freely given upon such terms as may be just” (CPLR 3025 [b];  see Edenwald Contr. Co. v. City of New York, 60 N.Y.2d 957, 959, 471 N.Y.S.2d 55, 459 N.E.2d 164) as long as the proposed amendment is not palpably insufficient or devoid of merit (see Bolanowski v. Trustees of Columbia Univ. in City of N.Y., 21 A.D.3d 340, 341, 800 N.Y.S.2d 560;  Glaser v. County of Orange, 20 A.D.3d 506, 799 N.Y.S.2d 120;  Ortega v. Bisogno & Meyerson, 2 A.D.3d 607, 609, 769 N.Y.S.2d 279).   Accordingly, in considering a motion for leave to amend, it is incumbent upon the court to examine the sufficiency and merits of the proposed amendment (see Hill v. 2016 Realty Assoc., 42 A.D.3d 432, 433, 839 N.Y.S.2d 801;  see e.g. Abrahamian v. Tak Chan, 33 A.D.3d 947, 949, 824 N.Y.S.2d 117;  Fisher v. Braun, 227 A.D.2d 586, 587, 643 N.Y.S.2d 205).

In this case, Wagner's proposed cross claim was devoid of merit (see e.g. Beja v. Meadowbrook Ford, 48 A.D.3d 495, 496, 852 N.Y.S.2d 268;  Ross v. Gidwani, 47 A.D.3d 912, 913, 850 N.Y.S.2d 567), since the contractual provisions upon which it was premised were clearly irrelevant to the issue of Wagner's potential tort liability for the plaintiff's alleged injuries (see e.g. Farragher v. City of New York, 26 A.D.2d 494, 275 N.Y.S.2d 542, affd. 21 N.Y.2d 756, 288 N.Y.S.2d 232, 235 N.E.2d 218).   Moreover, Wagner could not be found liable unless the trier of fact first determined that the Poritz defendants did not have a reasonable time within which to remedy the alleged defective condition (see generally Sarfowaa v. Claflin Apts., 284 A.D.2d 228, 727 N.Y.S.2d 82;  Edwards v. Van Skiver, 256 A.D.2d 957, 958, 681 N.Y.S.2d 893;  Brown v. O'Connor, 193 A.D.2d 1088, 598 N.Y.S.2d 629;  Farragher v. City of New York, 26 A.D.2d 494, 275 N.Y.S.2d 542, affd. 21 N.Y.2d 756, 288 N.Y.S.2d 232, 235 N.E.2d 218).

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