The Second Department denied leave to amend to add a cause of action in breach of contract, in D'Angelo v. State Insurance Fund, which was decided on February 5, 2008.

The court began by noting that leave to amend a pleading should be freely granted unless the proposed amendment is palpably improper or insufficient as a matter of law, or unless prejudice and surprise directly result from delay in seeking the amendment.

Here, the court said that the proposed amendment was palpably improper because Supreme Court lacks subject matter jurisdiction over a cause of action to recover damages for breach of contract against this defendant. A claim for money damages against the State must be litigated in the Court of Claims, pursuant to Court of Claims Act § 9[2].

Practice point: Defendant did not raise this issue in Supreme Court, but a court's lack of subject matter jurisdiction may not be waived, and may be raised at any time.