| Keating v Nanuet Bd. of Educ. |
| 2007 NY Slip Op 07405 [44 AD3d 623] |
| October 2, 2007 |
| Appellate Division, Second Department |
| Timothy Keating, Plaintiff, v Nanuet Board of Education etal., Defendants, and Siemens Building Technologies, Inc., Defendant and Third-PartyPlaintiff-Respondent. Environmental Climate Control, Inc., Third-PartyDefendant-Appellant. |
—[*1] Murphy & Lambiase, Goshen, N.Y. (Thomas Humbach of counsel), for defendant third-partyplaintiff-respondent.
In an action to recover damages for personal injuries, the third-party defendant appeals froman order of the Supreme Court, Rockland County (Alessandro, J.), dated May 1, 2006, whichdenied its motion for leave to amend its answer to the third-party complaint to include anaffirmative defense based on the New Jersey Property and Liability Guaranty Association Act.
Ordered that the order is affirmed, with costs.
While leave to amend a pleading should be freely given (see CPLR 3025 [b]), thedecision as to whether to grant such leave is generally left to the sound discretion of the trialcourt (see Edenwald Contr. Co. v City of New York, 60 NY2d 957, 959 [1983];Fulford v Baker Perkins, Inc., 100 AD2d 861 [1984]), and its determination will not belightly set aside (see Beuschel v Malm, 114 AD2d 569 [1985]). Here, the Supreme Courtprovidently exercised its discretion in denying the motion of the third-party defendant,Environmental Climate Control, Inc. (hereinafter ECC), for leave to amend its answer to thethird-party complaint to add an additional affirmative defense. After more than five years ofdiscovery, extensive motion practice, and a prior appeal, ECC served its motion just seven weeks[*2]before the scheduled trial date, and made the motionreturnable just two weeks prior to that date. However, the information upon which theaffirmative defense was based was known to ECC for more than five years. Since ECC failed tooffer a reasonable excuse for its delay in seeking the amendment, and the third-party plaintiffwould be prejudiced by the addition of the proposed amendment on the eve of trial, ECC'smotion was properly denied (see Caruso v Anpro, Ltd., 215 AD2d 713 [1995];Mawardi v New York Prop. Ins. Underwriting Assn., 183 AD2d 758 [1992];Pellegrino v New York City Tr. Auth., 177 AD2d 554, 557 [1991]). Further, theproposed amendment is palpably insufficient as a matter of law and patently devoid of merit (see Hill v 2016 Realty Assoc., 42AD3d 432, 433 [2007]; Polizzi vProfaci, 5 AD3d 456, 458 [2004]; Giovinco v Goldman, 276 AD2d 469 [2000];McKiernan v McKiernan, 207 AD2d 825 [1994]). Miller, J.P., Skelos, Covello andMcCarthy, JJ., concur.