| Carducci v Bensimon |
| 2014 NY Slip Op 01570 [115 AD3d 694] |
| March 12, 2014 |
| Appellate Division, Second Department |
| Antonio Carducci, Respondent-Appellant, v AbbeSohne Bensimon, Respondent and Michael A. Piccirillo,Appellant-Respondent. |
—[*1] Brian R. Hoch, White Plains, N.Y., for respondent-appellant. Kaye Scholer LLP, New York, N.Y. (Nicholas C. Friedman of counsel), forrespondent.
In an action, inter alia, to recover damages for breach of contract and to recover uponan alleged personal guarantee, the defendant Michael A. Piccirillo appeals, as limited byhis brief, from so much of an order of the Supreme Court, Westchester County (Tolbert,J.), entered September 19, 2012, as, upon granting that branch of his motion which wasfor leave to amend his answer to assert a statute of frauds defense, denied that branch ofhis motion which was for summary judgment dismissing the complaint insofar asasserted against him based on that defense, and the plaintiff cross-appeals from so muchof the same order as granted that branch of the motion of the defendant Michael A.Piccirillo which was for leave to amend his answer to assert a statute of frauds defense,and granted the separate motion of the defendant Abbe Sohne Bensimon for summaryjudgment dismissing the complaint insofar as asserted against her.
Ordered that the order is reversed insofar as appealed from, on the law, and thatbranch of the motion of the defendant Michael A. Piccirillo which was for summaryjudgment dismissing the complaint insofar as asserted against him based on the statute offrauds defense is granted; and it is further,
Ordered that the order is affirmed insofar as cross-appealed from; and it is further,
Ordered that one bill of costs is awarded to the defendants.
The Supreme Court providently exercised its discretion in granting that branch of themotion of the defendant Michael A. Piccirillo which was for leave to amend his answerto assert a statute of frauds defense. "Leave to amend a pleading should be freely givenabsent prejudice or surprise to the opposing party, unless the proposed amendment ispalpably insufficient or patently devoid of merit" (Faiella v Tysens Park Apts., LLC, 110 AD3d 1028, 1029[2013]; see CPLR 3025 [b]; Carroll v Motola, 109 AD3d 629, 630 [2013]). Latenessalone is not a barrier to the amendment (see Edenwald Contr. Co. v City of NewYork, 60 NY2d 957, 959 [1983]; Public Adm'r of Kings County v [*2]Hossain Constr. Corp., 27 AD3d 714, 716 [2006]).Here, in opposition to that branch of Piccirillo's motion which sought leave to amend hisanswer, the plaintiff failed to demonstrate the existence of any prejudice or surprise thatwould result from the amendment, or that the proposed amendment was palpablyinsufficient or patently devoid of merit (see Deutsche Bank Trust Co. Ams. v Cox, 110 AD3d 760,762 [2013]; Faiella v Tysens Park Apts., LLC, 110 AD3d at 1029; Mackenzie v Croce, 54 AD3d825, 826-827 [2008]).
However, upon granting leave to amend, the Supreme Court also should havegranted that branch of Piccirillo's motion which was for summary judgment dismissingthe complaint insofar as asserted against him based on his statute of frauds defense.Piccirillo established his prima facie entitlement to judgment as a matter of law bydemonstrating that the alleged agreement to answer for the debt of another was not inwriting and, therefore, was unenforceable (see General Obligations Law §5-701 [a] [2]; Paul, Weiss, Rifkind, Wharton & Garrison v Westergaard, 75NY2d 755, 756 [1989]). In opposition, the plaintiff failed to raise a triable issue of factregarding the applicability of any exception to the writing requirement so as to warrantthe denial of summary judgment (see CDJ Bldrs. Corp. v Hudson Group Constr. Corp., 67 AD3d720, 722 [2009]; Carey &Assoc. v Ernst, 27 AD3d 261, 263-264 [2006]).
Additionally, the Supreme Court properly awarded summary judgment dismissingthe complaint insofar as asserted against the defendant Abbe Sohne Bensimon. Insupport of her motion, Bensimon demonstrated her prima facie entitlement to judgmentas a matter of law pursuant to the provisions of the Connecticut Home Improvement Act(see Conn Gen Stat § 20-429), which the Supreme Court correctlydetermined is applicable to this matter. The plaintiff failed to raise a triable issue of factin opposition to Bensimon's motion. Mastro, J.P., Cohen, Miller and Hinds-Radix, JJ.,concur.