| Dialcom, LLC v AT & T Corp. |
| 2008 NY Slip Op 03164 [50 AD3d 727] |
| April 8, 2008 |
| Appellate Division, Second Department |
| Dialcom, LLC, Respondent, v AT & T Corp. et al.,Appellants. |
—[*1] Oved & Oved LLP, New York, N.Y. (Darren Oved, Terrence A. Oved, and ThomasFreedman of counsel), for respondent.
In an action, inter alia, to recover damages for breach of contract, the defendants appeal, aslimited by their brief, from so much of an order of the Supreme Court, Kings County (Schmidt,J.), dated October 17, 2006, as granted that branch of the plaintiff's motion which was for leaveto amend the complaint.
Ordered that the order is affirmed insofar as appealed from, with costs.
Leave to amend a complaint should be liberally granted absent prejudice to the opposingparty, as long as the proposed amendment is not palpably insufficient to state a cause of action(see Jackson Hgts. Care Ctr., LLC vBloch, 39 AD3d 477, 480 [2007]; Ruddock v Boland Rentals, 5 AD3d 368, 370 [2004]). "Thedetermination whether to grant leave to amend a pleading is within the sound discretion of thecourt, to be determined on a case-by-case basis" (Guiliano v Carlisle, 296 AD2d 438,438-439 [2002] [citations omitted]). It is proper to deny a plaintiff leave to amend the complaintto re-assert a cause of action that was previously dismissed (see Blum v New York StockExch., 298 AD2d 343, 345 [2002]).
The defendants failed to establish prejudice or surprise. Moreover, the claims in the proposedamended complaint are not palpably insufficient, or duplicative of any previously-dismissedclaims. Therefore, the Supreme Court properly granted that branch of the plaintiff's motion whichwas for leave to amend the complaint.[*2]
The defendants' remaining contentions are without merit.Rivera, J.P., Florio, Leventhal and Chambers, JJ., concur.