Opinion
2011-04-19
Walter SCHWARTZ, respondent, v. Lily SAYAH, defendant, Andrew W. Sayegh, appellant.
Andrew W. Sayegh, Yonkers, N.Y., appellant pro se. Walter Schwartz, Irvington, N.Y., for respondent.
Andrew W. Sayegh, Yonkers, N.Y., appellant pro se. Walter Schwartz, Irvington, N.Y., for respondent.
In an action, inter alia, to recover damages for conversion and to recover on a personal guarantee, the defendant Andrew W. Sayegh appeals from an order of the Supreme Court, Westchester County (Adler, J.), entered February 23, 2010, which denied his motion for leave to amend his answer to assert a counterclaim to recover damages pursuant to Judiciary Law § 487.
ORDERED that the order is affirmed, with costs.
Leave to amend pleadings should be freely granted ( see CPLR 3025[b]; Thomas Crimmins Contr. Co. v. City of New York, 74 N.Y.2d 166, 170, 544 N.Y.S.2d 580, 542 N.E.2d 1097) in the absence of prejudice or surprise resulting from the delay ( see Hartford Cas. Ins. Co. v. Vengroff Williams & Assoc., 306 A.D.2d 435, 436, 761 N.Y.S.2d 308). Moreover, where the motion is made during trial, as here, the court's discretion in deciding the motion for leave to amend should be discrete, circumspect, prudent, and cautious ( see Alrose Oceanside, LLC v. Mueller, 81 A.D.3d 574, 915 N.Y.S.2d 643;Morris v. Queens Long Is. Med. Group, P.C., 49 A.D.3d 827, 828, 854 N.Y.S.2d 222). Leave to amend should not be granted where the proposed amendment is palpably insufficient as a matter of law or is totally devoid of merit ( see Jenal v. Brown, 80 A.D.3d 727, 916 N.Y.S.2d 780;Morton v. Brookhaven Mem. Hosp., 32 A.D.3d 381, 820 N.Y.S.2d 294).
In this case, given the appellant's extensive and unexcused delay in seeking leave to amend, the obvious prejudice which the amendment would create in delaying the trial and confusing the proceedings with collateral issues, and the totally meritless nature of the proposed counterclaim given the absence of allegations regarding an intent to deceive on the part of the plaintiff and damages suffered by the appellant ( see generally Moormann v. Perini & Hoerger, 65 A.D.3d 1106, 1108, 886 N.Y.S.2d 49;Boglia v. Greenberg, 63 A.D.3d 973, 975, 882 N.Y.S.2d 215;Pui Sang Lai v. Shuk Yim Lau, 50 A.D.3d 758, 759, 855 N.Y.S.2d 615), the Supreme Court properly denied the motion for leave to amend ( see Jenal v. Brown, 80 A.D.3d 727, 916 N.Y.S.2d 780; Tarantini v. Russo Realty Corp., 273 A.D.2d 458, 459, 712 N.Y.S.2d 358;County of Suffolk v. Caccavalla, 227 A.D.2d 511, 513, 642 N.Y.S.2d 942). We note in this regard that the submission by the appellant, an attorney, of an affirmation rather than an affidavit in support of the motion was improper ( see CPLR 2106), and that document should have been disregarded because it was not in admissible form ( see Matter of Nazario v. Ciafone, 65 A.D.3d 1240, 1241, 887 N.Y.S.2d 117;Lessoff v. 26 Ct. St. Asso.s., LLC, 58 A.D.3d 610, 611, 872 N.Y.S.2d 144;Finger v. Saal, 56 A.D.3d 606, 607, 870 N.Y.S.2d 32;Pisacreta v. Minniti, 265 A.D.2d 540, 697 N.Y.S.2d 160).
The parties' remaining contentions are without merit.