| Strunk v Paterson |
| 2016 NY Slip Op 08219 [145 AD3d 700] |
| December 7, 2016 |
| Appellate Division, Second Department |
[*1]
| Christopher Earl Strunk, Appellant, v David A.Paterson et al., Respondents. H. William Van Allen, ProposedIntervener-Appellant. |
Christopher Earl Strunk, Brooklyn, NY, appellant pro se, and H. William Van Allen,Hurley, NY, proposed intervenor-appellant pro se (one brief filed).
Eric T. Schneiderman, Attorney General, New York, NY (Claude S. Platton and EricDe Pozo of counsel), for respondents.
In an action, inter alia, to recover damages for unjust enrichment, the plaintiff andnonparty H. William Van Allen appeal, as limited by their brief, from an order of theSupreme Court, Kings County (Schmidt, J.), dated June 27, 2014, which (a), in effect,denied that branch of the plaintiff's motion, denominated as one for leave to renew andreargue, but which was, in actuality, one for leave to reargue, (b) in effect, uponreargument, adhered to a determination in an order of the same court dated March 14,2011, denying that branch of the plaintiff's prior motion which was for leave to file anamended complaint, and (c) denied the motion of nonparty H. William Van Allen,denominated as one for leave to renew and reargue, but which was, in actuality, one forleave to renew his prior motion for leave to intervene in the action as a plaintiff, whichhad been denied in an order of the same court dated November 22, 2012.
Ordered that the appeal from so much of the order dated June 27, 2014, as, in effect,denied that branch of the plaintiff's motion which was for leave to reargue is dismissed,as no appeal lies from an order denying reargument; and it is further,
Ordered that the order dated June 27, 2014, is affirmed insofar as reviewed; and it isfurther,
Ordered that one bill of costs is awarded to the respondents.
The Supreme Court, upon reargument, properly adhered to its original determinationdenying that branch of the plaintiff's motion which was for leave to amend the complaint.Although leave to amend should be freely given in the absence of prejudice or surprise tothe opposing party (see CPLR 3025 [b]), the motion should be denied where theproposed amendment is palpably insufficient or patently devoid of merit (see Scofield v DeGroodt, 54AD3d 1017 [2008]; Lucidov Mancuso, 49 AD3d 220, 229 [2008]). "Whether to grant such leave is withinthe motion court's discretion, the exercise of which will not be lightly disturbed" (Pergament v Roach, 41 AD3d569, 572 [2007]; seeZeleznik v MSI Constr., Inc., 50 AD3d 1024, 1025 [2008]). Here, the proposedamendments were patently [*2]devoid of merit.
The Supreme Court also properly denied the motion of nonparty H. William VanAllen for leave to renew his prior motion for leave to intervene in the action as aplaintiff. The new facts offered in support of the motion would not change the priordetermination (see CPLR 2221 [e] [2]). Leventhal, J.P., Chambers, Austin andLaSalle, JJ., concur.