| Seidman v Industrial Recycling Props., Inc. |
| 2011 NY Slip Op 03581 [83 AD3d 1040] |
| April 26, 2011 |
| Appellate Division, Second Department |
| Sheldon Seidman, Respondent, v Industrial RecyclingProperties, Inc., Appellant, et al., Defendant. |
—[*1] Smith, Buss & Jacobs, LLP, Yonkers, N.Y. (James R. Anderson of counsel), forrespondent.
In an action to foreclose a mortgage, the defendant Industrial Recycling Properties, Inc.,appeals from so much of an order of the Supreme Court, Nassau County (McCarty III, J.),entered September 28, 2010, as denied its motion for leave to amend its pleadings to assertadditional counterclaims.
Ordered that the order is modified, on the law, by deleting the provision thereof denyingthose branches of the motion of the defendant Industrial Recycling Properties, Inc., which werefor leave to amend its pleadings to assert counterclaims alleging breach of contract and maliciousprosecution, and substituting therefor a provision granting those branches of the motion; as somodified, the order is affirmed insofar as appealed from, with costs to the appellant.
Leave to amend a pleading pursuant to CPLR 3025 (b) should be freely granted unless theproposed amendment is palpably insufficient or patently devoid of merit, or unless prejudice orsurprise to the opposing party results directly from the delay in seeking leave to amend (seeGiunta's Meat Farms, Inc. v Pina Constr. Corp., 80 AD3d 558 [2011]; Rosicki, Rosicki &Assoc., P.C. v Cochems, 59 AD3d 512 [2009]; Janssen v Incorporated Vil. of RockvilleCtr., 59 AD3d 15, 27 [2008]; Bennett v Long Is. Jewish Med. Ctr., 51 AD3d 959[2008]; Lucido v Mancuso, 49 AD3d 220, 222 [2008]). On the facts presented, theproposed counterclaims of the defendant mortgagor Industrial Recycling Properties, Inc.(hereinafter Industrial), alleging breach of contract and malicious prosecution were not palpablyinsufficient or patently devoid of merit. Moreover, the plaintiffs will not be prejudiced orsurprised by the amendment, which does not allege new or different transactions (see Whalenv Kawasaki Motors Corp., U.S.A., 92 NY2d 288, 293 [1998]; Edenwald Contr. Co. vCity of New York, 60 NY2d 957, 959 [1983]; Public Adm'r of Kings County v HossainConstr. Corp., 27 AD3d 714, 716 [2006]; Beverage Mktg. USA, Inc. v South BeachBeverage Co., Inc., 20 AD3d 439 [2005]). Accordingly, the Supreme Court should havegranted those branches of Industrial's motion which were for leave to amend its pleadings to addcounterclaims alleging breach of contract and malicious prosecution.
However, the Supreme Court properly denied that branch of Industrial's motion which was[*2]for leave to amend its pleadings to add a counterclaimalleging unjust enrichment, as such a claim does not lie where, as here, it is undisputed that avalid contract covering the same subject matter exists between the parties (see Sunrise PlazaAssoc. v International Summit Equities Corp., 288 AD2d 300 [2001]). Similarly, that branchof Industrial's motion which was for leave to amend its pleadings to add a counterclaim allegingslander of title based on the filing of a notice of pendency was properly denied, as the filing of anotice of pendency does not give rise to such a cause of action (see Alexander v Scott,286 AD2d 692 [2001]; Sopher v Martin, 243 AD2d 459, 462 [1997]; 35-45 MayAssoc. v Mayloc Assoc., 162 AD2d 389 [1990]).
The parties' remaining contentions are without merit. Skelos, J.P., Leventhal, Austin andMiller, JJ., concur.