From Casetext: Smarter Legal Research

Mfrs. Traders Trust Co. v. Reliance Ins. Co.

Appellate Division of the Supreme Court of New York, Fourth Department
Jun 14, 2004
8 A.D.3d 1000 (N.Y. App. Div. 2004)

Opinion

CA 04-00159.

Decided June 14, 2004.

Appeal from an order of the Supreme Court, Onondaga County (Anthony J. Paris, J.), entered August 8, 2003. The order denied the motion of defendant O'Brien Gere Technical Services, Inc. seeking leave to amend its answer.

FRANK A. BERSANI, JR., SYRACUSE, FOR DEFENDANT-APPELLANT.

GRESENS GILLEN LLP, BUFFALO (JOSEPH J. MANNA OF COUNSEL), FOR DEFENDANT-RESPONDENT.

Before: PRESENT: GREEN, J.P., PINE, SCUDDER, MARTOCHE, AND HAYES, JJ.


MEMORANDUM AND ORDER

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously affirmed with costs.

Memorandum: Supreme Court properly denied the motion of O'Brien Gere Technical Services, Inc. (defendant) seeking leave to amend its answer after its motion for summary judgment was denied, and after the cross motion of defendant Fru-Con/Fluor Daniel Joint Venture (Joint Venture) for summary judgment was granted following an appeal by Joint Venture to this Court ( Manufacturers Traders Trust Co. v. Reliance Ins. Co., 303 A.D.2d 1002). Although leave to amend should be freely granted, it is properly denied where the proposed amendment is lacking in merit ( see Christiano v. Chiarenza, 1 A.D.3d 1039; Fingerlakes Chiropractic v. Maggio, 269 A.D.2d 790, 791). Here, the proposed amendments concerning the defenses of waiver and judicial estoppel are lacking in merit ( see generally Enright v. Nationwide Ins. [appeal No. 2], 295 A.D.2d 980; Abramovich v. Harris, 227 A.D.2d 1000). Further, defendant failed to raise those defenses when its motion for summary judgment and Joint Venture's cross motion for summary judgment were before the court two years earlier, and defendant has failed to establish a reasonable excuse for the delay ( see Jablonski v. County of Erie, 286 A.D.2d 927, 928).


Summaries of

Mfrs. Traders Trust Co. v. Reliance Ins. Co.

Appellate Division of the Supreme Court of New York, Fourth Department
Jun 14, 2004
8 A.D.3d 1000 (N.Y. App. Div. 2004)
Case details for

Mfrs. Traders Trust Co. v. Reliance Ins. Co.

Case Details

Full title:MANUFACTURERS TRADERS TRUST COMPANY, NAMED IN THE RELEVANT ESCROW…

Court:Appellate Division of the Supreme Court of New York, Fourth Department

Date published: Jun 14, 2004

Citations

8 A.D.3d 1000 (N.Y. App. Div. 2004)
778 N.Y.S.2d 600

Citing Cases

Smelts v. Meloni

Such permitted amendments would include the assertion of affirmative defenses which, although not set forth…

Smelts v. Meloni

Such permitted amendments would include the assertion of affirmative defenses which, although not set forth…