| Palaszynski v Mattice |
| 2010 NY Slip Op 08187 [78 AD3d 1528] |
| November 12, 2010 |
| Appellate Division, Fourth Department |
| Pamela Palaszynski, Appellant, v Beverly J. Mattice, Respondent, et al.,Defendant. (Appeal No. 2.) |
—[*1] Bouvier Partnership, LLP, Buffalo (Norman E.S. Greene of counsel), fordefendant-respondent.
Appeal from an order of the Supreme Court, Genesee County (Robert C. Noonan, A.J.), enteredFebruary 24, 2010 in a personal injury action. The order granted the motion of defendant Beverly J.Mattice for leave to serve an amended answer and denied the cross motion of plaintiff to disqualifycounsel for Beverly J. Mattice.
It is hereby ordered that the order so appealed from is unanimously affirmed without costs.
Memorandum: Plaintiff commenced this action seeking damages for injuries she allegedly sustainedwhen she was a passenger in a vehicle that struck a tree. The vehicle was owned by defendant BeverlyJ. Mattice and operated by defendant Merissa A. McGill. In appeal No. 1, plaintiff appeals from anorder that, inter alia, granted the motion of Mattice for leave to amend her answer and, in appeal No. 2,she appeals from a subsequent order that, inter alia, granted that same relief. We thus dismiss appealNo. 1 inasmuch as the order in appeal No. 2 necessarily superseded the order in appeal No. 1.
We conclude in appeal No. 2 that Supreme Court properly granted the motion of Mattice for leaveto amend the answer. "Generally, [l]eave to amend a pleading should be freely granted in the absenceof prejudice to the nonmoving party where the amendment is not patently lacking in merit. . . , and the decision whether to grant leave to amend a complaint is committed to thesound discretion of the court" (Anderson vNottingham Vil. Homeowner's Assn., Inc., 37 AD3d 1195, 1198 [2007], rearg grantedand mem and oreder amended 41 AD3d 1324 [2007] [internal quotation marks omitted];see CPLR 3025 [b]; Carro v LyonsFalls Pulp & Paper, Inc., 56 AD3d 1276, 1277 [2008]). Here, there is no prejudice toplaintiff arising from the amended answer, and the proposed amendment is not patently insufficient on itsface. We thus perceive no basis for disturbing the court's determination (see generally EdenwaldContr. Co. v City of New York, 60 NY2d 957, 959 [1983]). We have considered plaintiff'sremaining contentions and conclude that they are without merit. Present—Martoche, J.P.,Lindley, Sconiers, Pine and Gorski, JJ.