| Complete Mgt., Inc. v Rubenstein |
| 2010 NY Slip Op 04726 [74 AD3d 722] |
| June 1, 2010 |
| Appellate Division, Second Department |
| Complete Management, Inc., Respondent, v Sanford A.Rubenstein et al., Appellants. |
—[*1] Conway & Conway, New York, N.Y. (Kevin P. Conway and Brian K. Chau of counsel), forrespondent.
In an action, inter alia, to recover damages for breach of contract, the defendants appeal, aslimited by their brief, from (1) so much of an order of the Supreme Court, Kings County (Knipel,J.), dated June 16, 2008, as denied those branches of their motion which were for summaryjudgment dismissing so much of the complaint as sought to recover upon certainliens/assignments, and (2) stated portions of an order of the same court dated July 13, 2009,which, inter alia, denied that branch of their motion which was for leave to amend their answerto assert the affirmative defense of lack of capacity to sue and, as, upon reargument, adhered tothe original determination denying those branches of their motion which were for summaryjudgment dismissing so much of the complaint as sought to recover upon certainliens/assignments.
Ordered that the appeal from the order dated June 16, 2008, is dismissed, without costs ordisbursements, as the portion of the order appealed from was superseded by the order dated July13, 2009, made upon reargument; and it is further,
Ordered that the order dated July 13, 2009, is modified, on the law, on the facts, and in theexercise of discretion, without costs or disbursements, by deleting the provision thereof denyingthat branch of the defendants' motion which was for leave to amend the answer to assert theaffirmative defense of lack of capacity to sue, and substituting therefor a provision granting thatbranch of the motion; as so modified, the order is affirmed insofar as appealed from.
Contrary to the defendants' contention, the Supreme Court properly denied those branches oftheir motion which were for summary judgment dismissing so much of the complaint as seeks torecover upon certain liens/assignments allegedly entered into by the defendants' clients and theplaintiff's predecessor-in-interest. In opposition to the defendants' prima facie showing of theirentitlement to judgment as a matter of law with regard to those liens/assignments which weremissing the defendants' signature and/or other information (see generally Alvarez v ProspectHosp., 68 NY2d 320, 324 [1986]), the plaintiff's submissions raised triable issues of fact asto whether it was [*2]entitled to recovery upon thoseliens/assignments (see Leon v Martinez, 84 NY2d 83, 88-89 [1994]; Brinkman vMoskowitz, 38 Misc 2d 950, 951 [1962]).
However, the Supreme Court improvidently exercised its discretion in denying that branchof the defendants' motion which was for leave to amend their answer to assert the affirmativedefense of lack of capacity to sue. Although the defendants waived this defense by failing toraise it in their answer or in a motion to dismiss made prior to answering (see CPLR3211 [a] [3]; [e]; FBB Asset Mgrs. vFreund, 2 AD3d 573, 574 [2003]; Harte v Richmond County Sav. Bank, 224AD2d 585, 586 [1996]), " 'defenses waived under CPLR 3211 (e) can nevertheless be interposedin an answer amended by leave of court pursuant to CPLR 3025 (b) so long as the amendmentdoes not cause the other party prejudice or surprise resulting directly from the delay' " (Nunez v Mousouras, 21 AD3d355, 356 [2005], quoting Endicott Johnson Corp. v Konik Indus., 249 AD2d 744,744 [1998]). Under the circumstances of this case, the granting of leave to amend would nothave resulted in prejudice or surprise to the plaintiff, and the proposed amendment was neitherpalpably insufficient nor totally devoid of merit (see Bajanov v Grossman, 36 AD3d 572, 573 [2007]; Nunez vMousouras, 21 AD3d at 356).
The defendants' remaining contentions are without merit. Covello, J.P., Dickerson, Eng andAustin, JJ., concur.