| Shefa Unlimited, Inc. v Amsterdam & Lewinter |
| 2008 NY Slip Op 01937 [49 AD3d 521] |
| March 4, 2008 |
| Appellate Division, Second Department |
| Shefa Unlimited, Inc., et al., Respondents, v Amsterdam &Lewinter et al., Appellants, et al., Defendants. |
—[*1] Ackerman, Levine, Cullen, Rickman & Limmer, LLP, Great Neck, N.Y. (James M. Meaneyand John M. Brickman of counsel), for appellant Valerie S. Amsterdam. William D. Fireman, P.C., New York, N.Y., for respondents.
In an action, inter alia, to recover damages for legal malpractice, the defendants Amsterdam& Lewinter and Valerie S. Amsterdam separately appeal, as limited by their respective briefs,from so much of an order of the Supreme Court, Kings County (Jackson, J.), dated August 31,2006, as granted that branch of the plaintiffs' motion which was for leave to serve a secondamended complaint and denied their cross motion for leave to file a motion for summaryjudgment dismissing the amended complaint before the continuation of discovery.
Ordered that the order is modified, on the facts and in the exercise of discretion, by deletingthe provision thereof granting that branch of the plaintiffs' motion which was for leave to serve asecond amended complaint, and substituting therefor a provision denying that branch of themotion; as so modified, the order is affirmed insofar as appealed from, with one bill of costspayable to the appellants.
In the proposed second amended complaint, the plaintiffs sought, in effect, to assert a newcause of action to recover damages for legal malpractice. However, that cause of action wastime-barred (see CPLR 214 [6]). Moreover, the original complaint did not give theappellants notice [*2]of the alleged transactions, occurrences, orseries of transactions and occurrences that formed the basis for the new cause of action (seeCPLR 203 [f]). Under these circumstances, where the proposed pleading was not a "mereexpansion" of the allegations in the original complaint, and thus, did not "relate back" to thatpleading, the Supreme Court improvidently exercised its discretion in permitting the amendment(Krioutchkova v Gaad Realty Corp.,28 AD3d 427, 428 [2006]). Indeed, although leave to amend a pleading is to be freelygranted, leave should be denied where, as here, the opponent would suffer prejudice or surpriseresulting directly from the delay in seeking leave, or the proposed amendment is palpablyinsufficient or patently devoid of merit (see CPLR 3025 [b]; Nissenbaum v Ferazzoli,171 AD2d 654, 655 [1991]; Barnes v County of Nassau, 108 AD2d 50, 52 [1985]).
The appellants' remaining contention is without merit. Mastro, J.P., Rivera, Covello andDickerson, JJ., concur.