Opinion
2007-1800 Q C.
Decided October 30, 2008.
Appeal from an order of the Civil Court of the City of New York, Queens County (Joseph J. Esposito, J.), entered August 10, 2007. The order granted defendants' motion for leave to amend their answer.
Order reversed without costs and defendants' motion for leave to amend their answer denied.
PRESENT: GOLIA, J.P., RIOS and STEINHARDT, JJ.
Plaintiff commenced the instant action to recover the sum of $10,500, representing its commission for the placement of an employee with defendants. Defendants served a pro se answer and, after retaining counsel, moved pursuant to CPLR 3025 (b) for leave to amend their answer to add the following affirmative defenses: plaintiff and defendants are not proper parties to the action since they have no privity of contract; plaintiff failed to join a proper party, to wit, Yolanda Flowers; plaintiff's claims are barred by the statute of frauds; plaintiff materially breached the contract; plaintiff failed to provide services; plaintiff's complaint is barred by the doctrine of waiver and plaintiff's claims are insufficient as a matter of law. In addition, defendants also sought to add a counterclaim for breach of contract based on plaintiff's alleged failure to provide a competent individual for employment.
"As a general rule, leave to amend a pleading should be granted where there is no significant prejudice or surprise to the opposing party and where the evidence submitted in support of the motion indicates that the amendment may have merit" ( Ingrami v Rovner, 45 AD3d 806, 808).
Since "an oral agreement between an [employment] agency and an employer is enforceable and not subject to the Statute of Frauds" ( Arrow Empl. Agency v Rice Buick-Pontiac-GMC Truck, 185 Misc 2d 811, 812-813 [App Term, 9th 10th Jud Dists 2000]) and an employer is not relieved from liability for the referral fee if the employee voluntarily quits after a short period of time or was discharged for unsatisfactory work ( see Wexler v Veerman, 276 App Div 1021; Globalforce Intl., Inc. v Urostar Mgt., Inc., 2002 NY Slip Op 50650[U] [App Term, 9th 10th Jud Dists 2002]), the affirmative defense that plaintiff's complaint is barred by the statute of frauds and defendants' counterclaim are devoid of merit.
The remaining affirmative defenses pleaded mere conclusions of law without supporting facts ( see Glenesk v Guidance Realty Corp., 36 AD2d 852) and, in addition, there was no evidence submitted in support of the motion for leave to amend indicating that said affirmative defenses may have merit ( see Moeller v Astor Chocolate Corp., 214 AD2d 548). Therefore, the court below improvidently exercised its discretion in granting defendants leave to amend their answer.
Golia, J.P., Rios and Steinhardt, JJ., concur.