Potter v Danco Transmission

[*1] Potter v Danco Transmission 2010 NY Slip Op 50832(U) [27 Misc 3d 136(A)] Decided on May 10, 2010 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on May 10, 2010
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., WESTON and STEINHARDT, JJ
2009-861 K C.

Jonathan Potter, Appellant,

against

Danco Transmission, Defendant, -and- DARLENE D. GORDON, Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Kathryn E. Freed, J.), entered November 28, 2006. The order denied plaintiff's motion to restore the action to the calendar and for leave to amend the summons and complaint.

ORDERED that the order is affirmed without costs.

On April 25, 2002, a vehicle registered to and driven by plaintiff Jonathan Potter was involved in an accident with a vehicle driven by Melody Limage and registered to
Darlene D. Gordon. In October 2002, plaintiff, who was self-represented, commenced the instant action against defendants Danco Transmission and Darlene D. Gordon to recover for damage to his vehicle, loss of time from work, and loss of use of property. In January 2003, defendant Gordon, also self-represented, served an answer, alleging that, at the time of the accident, her car was in the care of defendant Danco Transmission. On July 21, 2003, after both defendants failed to appear at a hearing, an inquest was held. A judgment in the principal sum of $7,350 was entered solely against defendant Gordon on August 8, 2003.

Thereafter, defendant Gordon, now represented by counsel, sought, among other things, [*2]to vacate the default judgment against her, claiming that she had not been notified of the July 21, 2003 hearing date and that she believed that the matter had been settled. In support of her motion, she submitted documentation which indicated that plaintiff, by counsel, had commenced an action in the Civil Court of the City of New York, Queens County, against Darlene Gordon and Melody Limage (Queens County index No. 83388/2002) seeking to recover for damage to his vehicle, for loss of use of his vehicle, and for towing charges. The documentation indicated that said action had been settled on July 28, 2003. In said action, defendant Gordon was represented by counsel. By order entered January 27, 2005, defendant Gordon's motion in the instant action was granted to the extent of, among other things, vacating the judgment against her and restoring the instant action to the calendar.

Apparently, after defendant Gordon failed to appear in court, a default judgment was again entered against her. By order entered April 3, 2006, the Civil Court (Kathryn E. Freed, J.) granted defendant Gordon's motion to vacate the default judgment and restore the action to the calendar. The clerk was directed to place the action on the appropriate calendar upon receipt of proof of service of the order upon plaintiff with notice of entry. The order with notice of entry was served on plaintiff on April 5, 2006 and was filed in the clerk's office on April 6, 2006.

Thereafter, plaintiff moved to restore the action to the calendar and for leave to amend the summons and complaint to add another defendant and to increase the amount of the claim. Defendant Gordon opposed the motion. By order entered November 28, 2006, the Civil Court denied the motion, and the instant appeal by plaintiff ensued.

We note that although plaintiff moved to restore the action to the calendar, the record indicates that the action had already been restored. Accordingly, that branch of plaintiff's motion should have been denied as moot rather than on the merits. With respect to the branch of the motion seeking leave to add another defendant and to increase the amount of the claim, we note that although leave to amend pleadings is ordinarily "freely given" (CPLR 3025 [b]), the motion court may deny an application for leave to amend where the proposed amendment appears to be palpably insufficient or patently devoid of merit, or where the delay in seeking the amendment would cause prejudice or surprise (see Lucido v Mancuso, 49 AD3d 220 [2008]). As set forth above, plaintiff previously settled his claim against defendant Gordon in the Queens action. Moreover, the motion papers in the instant case did not identify the proposed additional defendant and did not state why plaintiff did not include said defendant in the original pleadings. In view of the foregoing, it cannot be said that the Civil Court improvidently exercised its discretion in denying said branch of plaintiff's motion.

Plaintiff's sole contention on appeal is that, on the return date of the motion, he was not given the opportunity to proffer evidence in support of his motion. Since this argument is based on matters outside the record, it may not be considered on the appeal (Chimarios v Duhl, 152 AD2d 508 [1989]). Accordingly, in view of the fact that no argument is raised with respect to any alleged error on the face of the record before us, the order is affirmed (see Matter of Taylor v Board of Elections of City of NY, 122 AD2d 910 [1986]).

Pesce, P.J., Weston and Steinhardt, JJ., concur.
Decision Date: May 10, 2010