| United Fairness, Inc. v Town of Woodbury |
| 2014 NY Slip Op 00343 [113 AD3d 754] |
| January 22, 2014 |
| Appellate Division, Second Department |
| United Fairness, Inc., Appellant, v Town ofWoodbury et al., Respondents, et al., Defendants. |
—[*1] Joseph G. McKay, Newburgh, N.Y., for respondent Town of Woodbury. Feerick Lynch MacCartney, PLLC, South Nyack, N.Y. (Brian D. Nugent ofcounsel), for respondent Village of Woodbury.
In a putative class action for declaratory and injunctive relief, the plaintiff appeals(1), as limited by its brief, from so much of an order of the Supreme Court, OrangeCounty (Ecker, J.), dated November 15, 2011, as denied that branch of its motion whichwas for leave to amend the complaint to substitute Zigmond Brach as the plaintiff andadd two causes of action, and (2) from an order of the same court, also dated November15, 2011, which granted the separate motions of the defendants Town of Woodbury andVillage of Woodbury pursuant to CPLR 3211 (a) to dismiss the complaint insofar asasserted against each of them.
Ordered that the first order dated November 15, 2011, is reversed insofar as appealedfrom, on the law and in the exercise of discretion, and that branch of the plaintiff'smotion which was for leave to amend the complaint to substitute Zigmond Brach as theplaintiff and add two causes of action is granted; and it is further,
Ordered that the second order dated November 15, 2011, is reversed, on the law, andthe motions of the defendants Town of Woodbury and Village of Woodbury to dismissthe complaint insofar as asserted against each of them are denied; and it is further,
Ordered that one bill of costs is awarded to the plaintiff.
In September 2010, the plaintiff commenced this action for declaratory andinjunctive relief against, among others, the Town of Woodbury and the Village ofWoodbury. The Town and the Village separately moved pursuant to CPLR 3211 (a) todismiss the complaint insofar as asserted against each of them, inter alia, on the groundof lack of standing. Thereafter the plaintiff moved, among other things, for leave toamend the complaint to substitute Zigmond Brach as the plaintiff and add two causes ofaction. In an order dated November 15, 2011, the Supreme Court granted the motions ofthe Town and the Village on the ground that the plaintiff lacked standing to commence[*2]the action. In another order, also dated November 15,2011, the Supreme Court denied the plaintiff's motion because "the original complaint isdismissed."
Under the circumstances presented herein, the Supreme Court should have decided,on the merits, that branch of the plaintiff's motion which was for leave to amend thecomplaint before the court decided the motions of the Town and the Village to dismissthe complaint (see generallyCooke-Garrett v Hoque, 109 AD3d 457 [2013]). Leave to amend a pleadingshould be freely given absent prejudice or surprise to the opposing party, unless theproposed amendment is palpably insufficient or patently devoid of merit (seeCPLR 3025 [b]; Carroll vMotola, 109 AD3d 629 [2013]; Finkelstein v Lincoln Natl. Corp., 107 AD3d 759, 761[2013]; Lucido v Mancuso,49 AD3d 220, 227 [2008]). Moreover, a court shall not examine the legalsufficiency or merits of a pleading unless such insufficiency or lack of merit is clear andfree from doubt (see Lucido v Mancuso, 49 AD3d at 227). Here, the proposedamended complaint, which principally sought to shift the claims from the plaintiff to aparty who could have asserted those claims in the first instance, is proper, since "such anamendment, by its nature, did not result in surprise or prejudice to the [defendants], whohad prior knowledge of the claim[s] and an opportunity to prepare a proper defense" (Fulgum v Town of CortlandtManor, 19 AD3d 444, 446 [2005]; see JCD Farms v Juul-Nielsen, 300AD2d 446 [2002]; New York State Thruway Auth. v CBE Contr. Corp., 280AD2d 390 [2001]). In addition, the proposed amended complaint was not palpablyinsufficient or patently devoid of merit.
Accordingly, that branch of the plaintiff's motion which was for leave to serve anamended complaint should have been granted. Additionally, since the proposed amendedcomplaint rectified the plaintiff's lack of standing, the Supreme Court should not havegranted the motions to dismiss the complaint on the basis of lack of standing. Dillon,J.P., Dickerson, Austin and Sgroi, JJ., concur. [Prior Case History: 34 Misc 3d725.]