Friday, April 1, 2016

A successful motion for leave to amend.

Practice point:  The Appellate Division affirmed the granting of the cross motion for leave to amend, as the proposed amendments were not palpably insufficient or patently devoid of merit, and they did not prejudice or surprise the defendants.  Without alleging new or different facts, the proposed amendments merely sought to add new theories of recovery.

Student note:  Pursuant to CPLR 3025(b), leave to amend a pleading will be freely given, provided that the amendment is not palpably insufficient, does not prejudice or surprise the opposing party, and is not patently devoid of merit.  The motion court will not examine the merits of the proposed amendment unless its insufficiency or lack of merit is clear and beyond any doubt.

Case:  Gallagher v. 109-02 Dev., LLC, NY Slip Op 02050 (2d Dep't 2016)

Here is the decision.

Monday's issue: The presumed constitutionality of a statute.