Barnes Coy Architects, P.C. v Shamoon

2008 NY Slip Op 06135

Decided on July 1, 2008

Appellate Division, Second Department

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on July 1, 2008
APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT
WILLIAM F. MASTRO, J.P.
REINALDO E. RIVERA
ROBERT A. LIFSON
RUTH C. BALKIN, JJ.
2008-01981
(Index No. 21651/05)






Lynn & Gartner, LLP, Mineola, N.Y. (Robert P. Lynn, Jr., and
Stephen W. Livingston of counsel), for appellant.
Sinnreich & Kosakoff, LLP, Central Islip, N.Y. (Timothy F.
Hill of counsel), for respondents.


DECISION & ORDER

In an action, inter alia, to recover damages for breach of contract, the plaintiff appeals, as limited by its brief, from so much of an order of the Supreme Court, Suffolk County (Jones, J.), dated January 25, 2008, as denied that branch of its motion which was pursuant to CPLR 3025(b) for leave to amend the complaint to assert additional allegations and increase the ad damnum clause with respect to the cause of action to recover damages for breach of contract.

ORDERED that the order is reversed insofar as appealed from, on the facts and in the exercise of discretion, with costs, that branch of the plaintiff's motion which was pursuant to CPLR 3025(b) for leave to amend the complaint to assert additional allegations and increase the ad damnum clause with respect to the cause of action to recover damages for breach of contract is granted, and the amended complaint attached to the motion papers is deemed served.

In the original complaint, the plaintiff asserted, inter alia, a cause of action to recover damages for breach of an "Architect Agreement." Thereafter, the plaintiff moved, among other things, pursuant to CPLR 3025(b) for leave to amend the complaint to assert additional allegations and increase the ad damnum clause with respect to that cause of action. Under the circumstances of this case, the Supreme Court improvidently exercised its discretion in denying that branch of the plaintiff's motion, as the proposed amendment was neither palpably insufficient nor patently devoid [*2]of merit, and there was no evidence that it would prejudice or surprise the defendants (see CPLR 3025[b]; Lynch v Lynch, 47 AD3d 771, 772; see also Bennett v Long Island Jewish Med. Ctr.,AD3d , 2008 NY Slip Op 4823 [2d Dept 2008]; Lucido v Mancuso, 49 AD3d 220, lv grantedAD3d, 2008 NY Slip Op 68750[U][2d Dept 2008]).
MASTRO, J.P., RIVERA, LIFSON and BALKIN, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court