| Truebright Co., Ltd. v Lester |
| 2011 NY Slip Op 04235 [84 AD3d 1065] |
| May 17, 2011 |
| Appellate Division, Second Department |
| Truebright Co., Ltd., et al., Appellants, v Roy Lester,Respondent. |
—[*1] Catalano Gallardo & Petropoulos, LLP, Jericho, N.Y. (Matthew K. Flanagan of counsel), forrespondent.
In an action, inter alia, to recover damages for legal malpractice, the plaintiffs appeal from anorder of the Supreme Court, Nassau County (Cozzens, Jr., J.), entered September 29, 2010,which, in effect, granted the defendant's motion for leave to amend his answer to assert theaffirmative defense of lack of legal capacity to sue.
Ordered that the order is affirmed, with costs.
Under the circumstances, the Supreme Court did not improvidently exercise its discretionwhen it, in effect, granted the defendant's motion for leave to amend his answer, as the proposedamendment was neither palpably insufficient nor patently devoid of merit, and there was noevidence that it would prejudice or surprise the plaintiffs (see CPLR 3025 [b]; Matter of Roberts v Borg, 35 AD3d617, 618 [2006]; Public Adm'r ofKings County v Hossain Constr. Corp., 27 AD3d 714, 716 [2006]). To the extent thatthe plaintiffs "wish[ ] to test the merits of the proposed added . . . defense, [they]may . . . move for summary judgment upon a proper showing" (Lucido v Mancuso, 49 AD3d 220,229 [2008]). Covello, J.P., Eng, Chambers and Miller, JJ., concur.