Nanomedicon, LLC v. Research Found. of State Univ. of N.Y. , 10 N.Y.S.3d 552 ( 2015 )

Nanomedicon, LLC v Research Found. of State Univ. of N.Y. (2015 NY Slip Op 04619)

Nanomedicon, LLC v Research Found. of State Univ. of N.Y.

2015 NY Slip Op 04619

Decided on June 3, 2015

Appellate Division, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on June 3, 2015 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
RUTH C. BALKIN, J.P.
SHERI S. ROMAN
JOSEPH J. MALTESE
BETSY BARROS, JJ.

2013-03906
(Index No. 36815/10)

[*1]Nanomedicon, LLC, plaintiff-respondent,

v

Research Foundation of State University of New York, defendant-respondent, Pelagia-Irene Gouma, defendant third-party plaintiff-appellant, Medicon, Inc., et al., third-party defendants-respondents.

Sinnreich Kosakoff & Messina LLP, Central Islip, N.Y. (Lisa A. Perillo and Jonathan Sinnreich of counsel), and Lombard & Geliebter, LLP, New York, N.Y. (Lucien C. Chen of counsel), for defendant third-party plaintiff-appellant (one brief filed).

Thompson Hine LLP, New York, N.Y. (Joseph W. Muccia, Barry M. Kazan, and Shaun McElhenny of counsel), for plaintiff-respondent and third-party defendant-respondent Anastasia Rigas.

Scully, Scott, Murphy & Presser, P.C., Garden City, N.Y. (Steven I. Wallach of counsel), for defendant-respondent.

Schnader Harrison Segal & Lewis LLP, New York, N.Y. (Theodore L. Hecht of counsel), for third-party defendant-respondent Medicon, Inc., now known as Medicon Pharmaceuticals, Inc.

DECISION & ORDER

In an action, inter alia, to recover damages for breach of contract, the defendant-third-party plaintiff, Pelagia-Irene Gouma, appeals, as limited by her brief and a letter dated December 19, 2013, from so much of an order of the Supreme Court, Suffolk County (Emerson, J.), dated February 25, 2013, as denied that branch of her motion which was pursuant to CPLR 3025(b) for leave to serve a second amended answer with counterclaims and a second amended third-party complaint.

ORDERED that the order is affirmed insofar as appealed from, with one bill of costs to the respondents appearing separately and filing separate briefs.

A determination whether to grant leave to serve an amended pleading is within the Supreme Court's broad discretion, the exercise of which will not be lightly disturbed (see Bank of Smithtown v 219 Sagg Main, LLC, 107 AD3d 654; Greco v Christoffersen, 70 AD3d 769, 770; Brooks v Robinson, 56 AD3d 406). Although leave to amend pleadings should be "freely given" (CPLR 3025[b]; see Boakye-Yiadom v Roosevelt Union Free School Dist., 57 AD3d 929, 931), a court should deny such a motion when the proposed amendment is palpably insufficient or patently without merit (see Pedote v Kelly, 124 AD3d 855; Young v Brown, 113 AD3d 761; Spodek v Neiss, 104 AD3d 758; Bloom v Lugli, 102 AD3d 715; Congel v Malfitano, 84 AD3d 1145, 1146). Here, the Supreme Court providently exercised its discretion in denying that branch of the appellant's [*2]motion which was for leave to serve a second amended answer with counterclaims and a second amended third-party complaint, since the proposed amendment was palpably insufficient and patently devoid of merit (see Crystal Clear Dev., LLC v Devon Architects of N.Y., P.C., 97 AD3d 716, 719; Ferrandino & Son, Inc. v Wheaton Bldrs., Inc., LLC, 82 AD3d 1035, 1037).

We decline the request of the third-party defendant-respondent Medicon, Inc., to impose a sanction upon the appellant for pursuing an allegedly frivolous appeal (see 22 NYCRR 130-1.1).

BALKIN, J.P., ROMAN, MALTESE and BARROS, JJ., concur.

ENTER: Aprilanne Agostino Clerk of the Court