Leszczynski v. Kelly & McGlynn, 281 A.D.2d 519 (N.Y. App. Div. 2001). · Go Syfert
Leszczynski v. Kelly & McGlynn, 281 A.D.2d 519 (N.Y. App. Div. 2001). Cases Citing This Book View Copy Cite
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cited 2× by 2 distinct cases, last quoted 2006 · …palpably insufficient as a matter of law at p. 520
30 citation events (30 in the last 25 years) across 4 distinct courts.
Treatment trajectory · 2001 → 2026 · click a year to view as-of
2001 2013 2026
Top citers, strongest first. 11 distinct citers. How cited ↗
discussed Cited as authority (rule) Murphy v. Kirkland
N.Y. App. Div. · 2011 · confidence medium
The Appellate Division, First Department, has applied a relation-back analysis in approving an amendment of a complaint in an administrative proceeding under the Human Rights Law (see Rio Mar Rest. v New York State Div. of Human Rights, 270 AD2d 47, 48 [2000]), and we have applied a relation-back analysis when defendants have been added in civil actions brought under the Human Rights Law (see Leszczynski v Kelly & McGlynn, 281 AD2d 519, 520-521 [2001]; Schutz v Finkelstein Bruckman Wohl Most & Rothman, 232 AD2d 470 [1996]).
discussed Cited as authority (rule) DiBetta . v. Silberberg
N.Y. App. Div. · 2008 · confidence medium
Under the circumstances of this case, the Supreme Court did not improvidently exercise its discretion in denying that branch of the plaintiffs’ motion which was, in effect, pursuant to CPLR 3025 (b) for leave to amend their complaint to name an additional defendant (see CPLR 3025 [b]; Sidor v Zuhoski, 257 AD2d 564 [1999]; see also Ruddock v Boland Rentals, 5 AD3d 368 [2004]; Tucker v Lorieo, 291 AD2d 261 [2002]; Leszczynski v Kelly & McGlynn, 281 AD2d 519, 520 [2001]; Reid v Niagara Mach. & Tool Co., 170 AD2d 662 [1991]; Miller v Farina, 58 AD2d 731 [1977]).
discussed Cited as authority (rule) Katz v. Katz
N.Y. App. Div. · 2007 · confidence medium
The amendment failed to cure omission of an allegation as to causation and would not have revived the untimely fourth cause of action (see CPLR 3025 [b]; Ruddock v Boland Rentals, 5 AD3d 368, 370 [2004]; Ruffing v Union Carbide Corp., 1 AD3d 339 , 341 [2003]; cf. AYW Networks v Teleport Communications Group, 309 AD2d 724, 725 [2003]; Leszczynski v Kelly & McGlynn, 281 AD2d 519, 520-521 [2001]; Mishalove v Goldfarb, 260 AD2d 219 [1999]).
discussed Cited as authority (rule) Fontana v. Champion Mortgage Co.
N.Y. App. Div. · 2006 · confidence medium
Accordingly, the proposed breach of contract cause of action was “palpably insufficient as a matter of law” (Leszczynski v Kelly & McGlynn, 281 AD2d 519, 520 [2001]; see Gannett Suburban Newspapers v El-Kam Realty Co., 306 AD2d 314 [2003]).
discussed Cited as authority (rule) Wirsing v. Donzi Marine Inc.
N.Y. App. Div. · 2006 · confidence medium
The Supreme Court properly denied the plaintiffs’ cross motion for leave to amend their pleadings as to their fraud cause of action, as the proposed pleading alleging fraudulent misrepresentation was patently devoid of merit under the particular circumstances of this case (see Leszczynski v Kelly & McGlynn, 281 AD2d 519, 520 [2001]; Tarantini v Russo Realty Corp., 273 AD2d 458, 459 [2000]).
cited Cited as authority (rule) Williams v. Marvin Windows & Doors
N.Y. App. Div. · 2005 · signal: cf. · confidence medium
Admin., 91 NY2d 467, 470-472 [1998]; Green v Solecam Corp., 7 AD3d 670 [2004]; cf. Leszczynski v Kelly & McGlynn, 281 AD2d 519, 520 [2001]).
discussed Cited as authority (rule) Evans v. Ellis
N.Y. App. Div. · 2004 · confidence medium
Contrary to the appellant’s contention on appeal, the Supreme Court providently exercised its discretion in denying her motion for leave to serve a supplemental summons and amended complaint (see CPLR 3025 [b]; Leszczynski v Kelly & McGlynn, 281 AD2d 519, 520 [2001]; Heckler Elec.
discussed Cited as authority (rule) Quinto v. New York City Transit Authority
N.Y. App. Div. · 2004 · confidence medium
In this case, the plaintiff failed to cite any such statute or ordinance in his motion papers, rendering the subject amendment “palpably insufficient as a matter of law” (Leszczynski v Kelly & McGlynn, 281 AD2d 519, 520 [2001]).
discussed Cited as authority (rule) Cerabono v. Price
N.Y. App. Div. · 2004 · confidence medium
In addition, the Supreme Court correctly denied the plaintiffs cross motion for leave to amend his complaint (see Leszczynski v Kelly & McGlynn, 281 AD2d 519, 520 [2001]; Tarantini v Russo Realty Corp., 273 AD2d 458, 459 [2000]).
discussed Cited as authority (rule) Ortega v. Bisogno & Meyerson
N.Y. App. Div. · 2003 · confidence medium
Leave to amend a pleading should be freely given (see CPLR 3025 [b]), provided the amendment is not palpably insufficient, does not prejudice or surprise the opposing party, and is not patently devoid of merit (see generally Fahey v County of Ontario, 44 NY2d 934 [1978]; Leszczynski v Kelly & McGlynn, 281 AD2d 519, 520 [2001]).
discussed Cited as authority (rule) Breco Environmental Contractors, Inc. v. Town of Smithtown
N.Y. App. Div. · 2003 · confidence medium
Motions for leave to amend pleadings are liberally granted in the absence of prejudice or surprise (see Leszczynski v Kelly & McGlynn, 281 AD2d 519, 520 [2001]; Corsale v Pantry Pride Supermarket, 197 AD2d 659, 660 [1993]).
Retrieving the full opinion text from the archive…
Steven Leszczynski
v.
Kelly & McGlynn, and Patricia Drago
Appellate Division of the Supreme Court of the State of New York.
Mar 19, 2001.
281 A.D.2d 519
Cited by 28 opinions  |  Published

—In an action to recover damages for employment discrimination, the plaintiff appeals from so much of an order of the Supreme Court, Queens County (Golar, J.), dated April 4, 2000, as denied that branch of his motion which was to amend his complaint to add Patricia Drago as a defendant.

Ordered that the order is affirmed insofar as appealed from, with costs.

The plaintiff commenced this action in 1995 alleging, inter alia, employment discrimination in violation of the State Human Rights Law (Executive Law art 15). In 1999 he moved to amend the complaint to add United States Fire Insurance Company (hereinafter U.S. Fire) and Patricia Drago, a vice president of U.S. Fire, as defendants. U.S. Fire did not dispute[*520] that it was a proper defendant. The Supreme Court granted that branch of the plaintiffs motion which was for leave to add a cause of action against U.S. Fire and the original defendants based on the plaintiffs claim that the defendants retaliated against him for bringing a discrimination complaint. However, the Supreme Court denied that branch of the plaintiffs motion which was for leave to add Drago as a defendant and to assert causes of action against her to recover damages for retaliation and fraud.

A determination whether to grant leave to amend a pleading is left to the sound discretion of the Supreme Court, and its determination should not be lightly set aside (see, Sidor v Zuhoski, 257 AD2d 564). Although ordinarily leave to amend a complaint should be freely given absent prejudice or surprise resulting from the delay (see, Edenwald Contr. Co. v City of New York, 60 NY2d 957; Hilltop Nyack Corp. v TRMI Holdings, 275 AD2d 440; CPLR 3025 [b]), leave should be denied if the proposed amendment is palpably insufficient as a matter of law or is totally devoid of merit (see, Tarantini v Russo Realty Corp., 273 AD2d 458).

The plaintiffs proposed fraud cause of action against Drago is palpably insufficient, as it is based on a letter written by Drago which was nothing more than “a representation of opinion or a prediction of something which is hoped or expected to occur in the future” (Zanani v Savad, 217 AD2d 696, 697; see also, Chase Invs. v Kent, 256 AD2d 298). As the plaintiff failed to make the requisite evidentiary showing that the proposed amendment has merit (see, Heckler Elec. Co. v Matrix Exhibits-N. Y., 278 AD2d 279), the Supreme Court properly denied leave to amend the complaint to add a fraud cause of action against Drago.

The proposed cause of action against Drago based on allegations of retaliation is barred by the three-year Statute of Limitations (see, CPLR 214 [2]; Karczewski v Sharpe, 260 AD2d 606). Therefore, the burden was on the plaintiff to show that the claim related back to the date the complaint was filed against the original defendants (see, Buran v Coupal, 87 NY2d 173; Ramos v Cilluffo, 276 AD2d 475; CPLR 203 [c]).

We agree with the Supreme Court that the plaintiff failed to establish that Drago knew or should have known that the action would have been brought against her as well but for a mistake by the plaintiff as to her identity as a potential defendant (see, Ramos v Cilluffo, supra; Somer & Wand v Rotondi, 251 AD2d 567; Leylegian v Federal Paper Bd. Co., 251 AD2d 60; see generally, Buran v Coupal, supra). Accordingly, the[*521] relation-back doctrine is inapplicable, and the Supreme Court properly denied that branch of the plaintiffs motion which was to add Drago as a party to assert a cause of action to recover damages for retaliation against her. O’Brien, J. P., Krausman, Florio and Schmidt, JJ., concur.