| Whiteman Osterman & Hanna, LLP v Albany-Troy NeurosurgicalAssoc., P.C. |
| 2008 NY Slip Op 03287 [50 AD3d 1305] |
| April 11, 2008 |
| Appellate Division, Third Department |
| Whiteman Osterman & Hanna, LLP,Plaintiff, v Albany-Troy Neurosurgical Associates, P.C., et al., Defendants andThird-Party Plaintiffs-Appellants. Joshua D. Powell et al., Third-PartyDefendants-Respondents. |
—[*1] McNamee, Lochner, Titus & Williams, P.C., Albany (Scott C. Paton of counsel), forthird-party defendants-respondents.
Lahtinen, J. Appeal from an order of the Supreme Court (Doyle, J.), entered February 5, 2007in Albany County, which, among other things, granted defendants' motion to amend theirthird-party complaint.
Plaintiff commenced the underlying action against defendants seeking payment of unpaidlegal fees. Defendants brought a third-party action against, among others, Joshua D. Powell, theformer CEO of the corporate defendants, and Edward Scheid Jr., a physician formerly associatedwith the corporate defendants. Powell and Scheid made a pre-answer motion [*2]to dismiss the third-party action, which was denied, and while thatmotion was pending defendants applied for, among other things, leave to amend their pleading.Finding that no prejudice would inure to Powell and Scheid, Supreme Court granted defendantsleave to amend their third-party complaint, but ordered that defendants pay costs and reasonablecounsel fees incurred by Powell and Scheid in their unsuccessful motion to dismiss. Defendantsappeal.
Granting a party permission to amend a pleading may be subject to certain conditions,including costs and reasonable counsel fees (see e.g. Sheppard v Smith Well Drilling &Water Sys., 102 AD2d 919, 919-920 [1984]; Mirabella v Banco Indus. de la RepublicaArgentina, 34 AD2d 630, 630-631 [1970]). Nevertheless, not every situation supports theimposition of counsel fees (see Estate ofVitale v Eventquest, Inc., 38 AD3d 330, 331 [2007]). Upon review of this record, andnoting that Powell and Scheid were unsuccessful in their motion to dismiss (and such ruling hassome apparent relevance to the amended pleading that was filed), we exercise our discretion toreverse so much of the order as awarded counsel fees.
Peters, J.P., Rose, Kane and Malone Jr., JJ., concur. Ordered that the order is modified, onthe facts, without costs, by reversing so much thereof as directed defendants to pay counsel feesincurred by third-party defendants Joshua D. Powell and Edward Scheid Jr., and, as so modified,affirmed.