Generally, an application for leave to amend a pleading is governed by a permissive standard: in the absence of prejudice or surprise resulting directly from the delay in seeking leave, leave is to be freely granted unless the proposed amendment is palpably insufficient or patently devoid of merit. Here, the Appellate Division had dismissed the second amended complaint because of a pleading deficiency that plaintiffs lacked standing and capacity to sue, which is not a dismissal on the merits. The proposed third amended complaint purportedly cured the defect, but there there was no complaint to amend. The Appellate Division's dismissal deprived the trial court of discretion to grant leave to amend the second amended complaint. The Appellate Division's dismissal order directed that judgement be entered by the Supreme Court Clerk, and that was not done. However, that failure is of no consequence, as the entry of a subsequent judgment is merely a ministerial act. The dismissal order was binding on the parties until vacated or set aside on further appeal. Plaintiff did not appeal, and so its only remedy was to commence a new action, which it failed to do.
Favourite Ltd. v. Cico, NY Slip Op 03987 (1st Dep't June 21, 2022)
