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Tarantini v. Russo Realty Corp.

Appellate Division of the Supreme Court of New York, Second Department
Jul 26, 2000
712 N.Y.S.2d 358 (N.Y. App. Div. 2000)

Opinion

Argued May 15, 2000.

July 26, 2000.

In an action, inter alia, to establish title to certain real property by adverse possession, the defendant Russo Realty Corp. appeals from (1) a decision of the Supreme Court, Suffolk County (Catterson, J.), dated June 4, 1999, and (2) an order of the same court dated February 18, 2000, which denied its motion for leave to amend its answer to interpose a defense that RPAPL 541 unconstitutionally deprived it of its right to property.

Stim Warmuth, P.C., Huntington, N.Y. (Paula J. Warmuth of counsel; Glenn P. Warmuth on the brief), for appellant.

Karl Brodzansky, Carle Place, N.Y. (Barbara M. Kirwan of counsel), for respondent.

Before: SONDRA MILLER, J.P., MYRIAM J. ALTMAN, HOWARD MILLER, ROBERT W. SCHMIDT, JJ.


DECISION ORDER

ORDERED that the appeal from the decision is dismissed, as no appeal lies from a decision (see, Schicchi v. Green Constr. Corp., 100 A.D.2d 509); and it is further,

ORDERED that the order is affirmed; and it is further,

ORDERED that the respondent is awarded one bill of costs.

Motions for leave to amend pleadings should be liberally granted absent prejudice or surprise resulting directly from the delay (see, CPLR 3025[b]; McCaskey, Davies Assoc. v. New York City Health Hosps. Corp., 59 N.Y.2d 755; Fahey v. County of Ontario, 44 N.Y.2d 934, 935). However, where the proposed amendment is palpably insufficient as a matter of law or is totally devoid of merit, leave should be denied (see, Alejandro v. Riportella, 250 A.D.2d 556; Sentry Ins. Co. v. Kero-Sun, Inc., 122 A.D.2d 204; Norman v. Ferrara, 107 A.D.2d 739). Here, the appellant's proposed defense, that RPAPL 541 unconstitutionally deprived it of its right to property, is totally devoid of merit. Therefore, the motion for leave to amend the answer was properly denied.


Summaries of

Tarantini v. Russo Realty Corp.

Appellate Division of the Supreme Court of New York, Second Department
Jul 26, 2000
712 N.Y.S.2d 358 (N.Y. App. Div. 2000)
Case details for

Tarantini v. Russo Realty Corp.

Case Details

Full title:JOSEPHINE TARANTINI, RESPONDENT, v. RUSSO REALTY CORP., APPELLANT; ET AL.…

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

Date published: Jul 26, 2000

Citations

712 N.Y.S.2d 358 (N.Y. App. Div. 2000)
712 N.Y.S.2d 358

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