| 30-40 E. Main St. Bayshore, Inc. v Republic Franklin Ins.Co. |
| 2014 NY Slip Op 01601 [115 AD3d 737] |
| March 12, 2014 |
| Appellate Division, Second Department |
| 30-40 East Main Street Bayshore, Inc., et al.,Appellants, v Republic Franklin Insurance Co., et al.,Respondents. |
—[*1] Faust Goetz Schenker & Blee LLP, New York, N.Y. (Lisa De Lindsay of counsel),for respondents.
In an action, inter alia, to recover damages for breach of a contract of insurance, theplaintiffs appeal (1), as limited by their brief, from so much of an order of the SupremeCourt, Suffolk County (Farneti, J.), entered January 17, 2012, as denied their motion forleave to amend the complaint and denied their separate motion pursuant to CPLR 3124 tocompel the defendants to comply with a document production request, and (2) from anorder of the same court dated October 11, 2012, which denied their motion for leave toreargue their prior motions and to renew their prior motion for leave to amend thecomplaint.
Ordered that the appeal from so much of the order dated October 11, 2012, as deniedthat branch of the plaintiffs' motion which was for leave to reargue is dismissed, as noappeal lies from an order denying reargument (see Lamacchia v Schwartz, 94 AD3d 712 [2012]); and it isfurther,
Ordered that the order entered January 17, 2012, is affirmed insofar as appealedfrom; and it is further,
Ordered that the order dated October 11, 2012, is affirmed insofar as reviewed; and itis further,
Ordered that one bill of costs is awarded to the defendants.
The Supreme Court providently exercised its discretion in denying the plaintiffs'motion for leave to amend the complaint to add a claim for certain consequentialdamages. Although leave to amend should be freely given in the absence of prejudice orsurprise to the opposing party (see CPLR 3025 [b]), the motion should be deniedwhere, as here, the proposed amendment is palpably insufficient or patently devoid ofmerit (see Putnam County Sav.Bank v Aditya, 91 AD3d 840 [2012]; Stevens v Winthrop S. Nassau Univ. Health Sys., Inc., 89 AD3d835 [2011]; Scofield vDeGroodt, 54 AD3d 1017 [2008]; Lucido v Mancuso, 49 AD3d 220 [2008]). Here, theinability of the plaintiffs to recover an attorney's fee, costs, and interest as consequentialdamages in this affirmative action against their insurer is clear and free from doubt(see Bi-Economy Mkt., Inc. v Harleysville Ins. Co. of N.Y., 10 [*2]NY3d 187, 195 [2008]; New York Univ. v ContinentalIns. Co., 87 NY2d 308, 324 [1995]; Stein, LLC v Lawyers Tit. Ins. Corp., 100 AD3d 622[2012]).
Additionally, the Supreme Court providently exercised its discretion in denying thatbranch of the plaintiffs' motion which was for leave to renew their motion for leave toamend the complaint. The plaintiffs' motion for leave to renew was not based upon newfacts not offered on the prior motion that would change the prior determination(see CPLR 2221 [e] [2]; Medina v New York City Health & Hosps. Corp. [Woodhull Med.& Mental Health Ctr.], 22 AD3d 814 [2005]).
Finally, the Supreme Court properly denied the plaintiffs' motion to compel thedefendants to comply with a document production request since the plaintiffs failed tosubmit an affirmation of good faith pursuant to 22 NYCRR 202.7 (a) (2) (see 22NYCRR 202.7 [c]; Matter ofGreenfield v Board of Assessment Review for Town of Babylon, 106 AD3d908 [2013]; Natoli vMilazzo, 65 AD3d 1309 [2009]). In any event, denial of the motion wasappropriate as the document production request sought irrelevant information, and wasoverbroad and burdensome (seeMontalvo v CVS Pharm., Inc., 102 AD3d 842 [2013]; Gilman & Ciocia, Inc. vWalsh, 45 AD3d 531 [2007]). Skelos, J.P., Dillon, Hall and Roman, JJ., concur.[Prior Case History: 2012 NY Slip Op 30173(U).]