| Lynch v Lynch |
| 2008 NY Slip Op 00460 [47 AD3d 771] |
| January 22, 2008 |
| Appellate Division, Second Department |
| Joseph Lynch, Appellant, v Dennis Michael Lynch et al.,Respondents. |
—[*1] Mintz & Fraade, P.C., New York, N.Y. (I. Frederick Shotkin of counsel), forrespondents.
In an action, inter alia, to set aside a deed, the plaintiff appeals from an order and judgment(one paper) of the Supreme Court, Suffolk County (Costello, J.), entered October 27, 2006,which denied his motion for leave to amend the complaint, granted that branch of the defendants'cross motion which was for summary judgment dismissing the complaint, and dismissed thecomplaint.
Ordered that the order and judgment is reversed, on the law, with costs, that branch of thedefendants' cross motion which was for summary judgment dismissing the complaint is denied,the complaint is reinstated, the plaintiff's motion for leave to amend the complaint is granted, andthe amended complaint attached to the motion papers is deemed served.
The plaintiff's initial complaint set forth various causes of action, including one to set aside adeed dated July 8, 2003, on the ground that without the plaintiff's knowledge or consent, thedefendant Dennis Michael Lynch signed the plaintiff's name on that deed in order to convey titleof certain real property owned by the plaintiff to him. After issue was joined, the plaintiff movedfor leave to amend the complaint to add undue influence, fraud in the execution, unjustenrichment, and breach of contract as additional grounds to set aside the deed. Thereafter, thedefendants cross-moved, inter alia, for summary judgment dismissing the complaint. TheSupreme Court denied the plaintiff's motion for leave to amend the complaint and granted thatbranch of the defendants' cross motion which was for summary judgment dismissing thecomplaint. We reverse.[*2]
Under the circumstances of this case, the Supreme Courtimprovidently exercised its discretion in denying the plaintiff's motion for leave to amend hiscomplaint, as the proposed amendment was neither palpably insufficient nor patently devoid ofmerit, and there was no evidence that it would prejudice or surprise the defendants (seeCPLR 3025 [b]; Bajanov vGrossman, 36 AD3d 572, 573 [2007]; Consolidated Payroll Servs., Inc. v Berk, 18 AD3d 415 [2005]).
Moreover, the Supreme Court improperly granted that branch of the defendants' cross motionwhich was for summary judgment dismissing the complaint where, as here, pertinent additionaldiscovery remained outstanding (see CPLR 3212 [f]). Rivera, J.P., Covello, Angiolilloand Dickerson, JJ., concur.