Opinion
2014-00742, Index No. 22385/09.
10-07-2015
In the Matter of Andrew ROSENBERG, et al., appellants, v. NEW YORK STATE OFFICE OF PARKS, RECREATION, AND HISTORIC PRESERVATION, et al., respondents.
Zarin & Steinmetz, White Plains, N.Y. (Michael D. Zarin and Jody T. Cross of counsel), for appellants. Eric T. Schneiderman, Attorney General, New York, N.Y. (Claude S. Platton and Karen W. Lin of counsel), for respondents.
Zarin & Steinmetz, White Plains, N.Y. (Michael D. Zarin and Jody T. Cross of counsel), for appellants.
Eric T. Schneiderman, Attorney General, New York, N.Y. (Claude S. Platton and Karen W. Lin of counsel), for respondents.
MARK C. DILLON, J.P., THOMAS A. DICKERSON, JEFFREY A. COHEN, and COLLEEN D. DUFFY, JJ.
Opinion In an action, inter alia, for a judgment declaring that the New York State Office of Parks, Recreation, and Historic Preservation has no ownership interests in a certain bridle path, Andrew Rosenberg and Sandra Holden appeal, as limited by their brief, from so much of an order of the Supreme Court, Westchester County (Hubert, J.), entered November 22, 2013, as denied their motion for leave to amend the complaint and that branch of their separate motion which was for an attorney's fee and costs, plus $250, pursuant to Judiciary Law § 773.
ORDERED that the order is affirmed insofar as appealed from, with costs.
This matter has been before this Court on a prior appeal (see Matter of Rosenberg v. New York State Off. of Parks, Recreation, & Historic Preserv., 94 A.D.3d 1006, 943 N.Y.S.2d 123 ). The plaintiffs now argue that the Supreme Court improperly denied their motion for leave to amend the complaint to assert causes of action alleging substantive due process and equal protection violations under the United States and New York Constitutions.
Where no prejudice or surprise results from the delay in seeking leave to amend a pleading, “such applications are to be freely granted unless the proposed amendment is palpably insufficient or patently devoid of merit” (Lucido v. Mancuso, 49 A.D.3d 220, 222, 851 N.Y.S.2d 238 ; accord Clarke v. Laidlaw Tr., Inc., 125 A.D.3d 920, 922, 5 N.Y.S.3d 138 ; see Jones v. LeFrance Leasing Ltd. Partnership, 127 A.D.3d 819, 821, 7 N.Y.S.3d 352 ; Galanova v. Safir, 127 A.D.3d 686, 687, 4 N.Y.S.3d 538 ; Ricca v. Valenti, 24 A.D.3d 647, 648, 807 N.Y.S.2d 123 ). “A determination whether to grant such leave is within the Supreme Court's broad discretion” and will not be lightly disturbed (Galanova v. Safir, 127 A.D.3d at 687, 4 N.Y.S.3d 538 [internal quotation marks omitted] ). Here, the causes of action proposed by the plaintiffs are patently devoid of merit. Accordingly, the Supreme Court properly denied the plaintiffs' motion for leave to amend the complaint to assert them (see Village of Willowbrook v. Olech, 528 U.S. 562, 564, 120 S.Ct. 1073, 145 L.Ed.2d 1060 ; Bower Assoc. v. Town of Pleasant Val., 2 N.Y.3d 617, 627, 781 N.Y.S.2d 240, 814 N.E.2d 410 ; Sonne v. Board of Trustees of Vil. of Suffern, 67 A.D.3d 192, 200–202, 887 N.Y.S.2d 145 ; Nicolakis v. Rotella, 24 A.D.3d 739, 740, 806 N.Y.S.2d 700 ).
The Supreme Court also properly denied that branch of the plaintiffs' separate motion which was for an attorney's fee and costs, plus $250, pursuant to Judiciary Law § 773. “[O]n a motion to punish for civil contempt, a finding of civil contempt is the prerequisite for imposing attorneys' fees” (Kiperman v. Steinberg, 234 A.D.2d 518, 519, 651 N.Y.S.2d 176 ; see Romanello v. Davis, 49 A.D.3d 652, 654, 856 N.Y.S.2d 128 ). Here, however, the court expressly denied that branch of the plaintiffs' motion which was for a finding of civil contempt, and the plaintiffs have not appealed from that portion of the order. Thus, denial of the statutory award was proper.
The plaintiffs' remaining contentions are without merit.