| Kuslansky v Kuslansky, Robbins, Stechel & Cunningham,LLP |
| 2008 NY Slip Op 04062 [50 AD3d 1101] |
| April 29, 2008 |
| Appellate Division, Second Department |
| Phillip Kuslansky, Respondent, v Kuslansky, Robbins,Stechel and Cunningham, LLP, Appellant, et al., Defendants. |
—[*1] Hanshe & Hanshe PLLC, Sayville, N.Y. (Joseph A. Hanshe of counsel), forrespondent.
In an action, inter alia, to recover damages for breach of contract, the defendant Kuslansky,Robbins, Stechel and Cunningham, LLP, appeals, (1), as limited by its brief, from so much of anorder of the Supreme Court, Nassau County (Warshawsky, J.), entered November 15, 2006, asdenied that branch of its motion which was for leave to amend its answer to assert an affirmativedefense and counterclaim for fraudulent inducement, and (2), as limited by its notice of appealand brief, from so much of an order of the same court entered March 28, 2007, as, uponreargument, adhered to the original determination in the order entered November 15, 2006.
Ordered that the appeal from the order dated entered November 15, 2006 is dismissed, as thatorder was superseded by the order entered March 28, 2007, made upon reargument; and it isfurther,
Ordered that the order entered March 28, 2007 is affirmed insofar as appealed from, withcosts.
Leave to amend a pleading should be freely given (see CPLR 3025 [b]). However, "acourt need not grant leave to amend a pleading where the proposed amendment is palpablywithout merit" (Thone v Crown Equip.Corp., 27 AD3d 723, 724 [2006]). Here, the Supreme Court properly denied theappellant's motion for leave to amend its answer to assert an affirmative defense andcounterclaim [*2]for fraudulent inducement, as the appellantfailed to establish the materiality of the plaintiff's alleged misrepresentation. Furthermore, thecounterclaim is untimely since, as of the date that the action was commenced (see CPLR203 [d]), the counterclaim was barred by the applicable limitations period, i.e., the longer of sixyears from the alleged fraud, or two years from when the fraud reasonably could have beendiscovered (see CPLR 213 [8]; 203 [g]). Skelos, J.P., Lifson, Santucci and Balkin, JJ.,concur.