Appeal from an order of the Civil Court of the City of New York, Queens County (Lee A. Mayersohn, J.), entered May 9, 2007. The order, insofar as appealed from, denied defendant's motion for summary judgment dismissing the complaint and granted plaintiff's cross motion to the extent of granting plaintiff leave to amend the complaint to add a cause of action sounding in fraud.

Order, insofar as appealed from, modified by vacating so much of the order as denied defendant's motion for summary judgment and by granting defendant's motion to the extent of dismissing the cause of action based on unjust enrichment; as so modified, affirmed without costs.

Plaintiff insurance carrier commenced this action seeking to recover $10,800.30 based on unjust enrichment, alleging that it had paid said sum to defendant, its insured, for automotive repairs which were never done. Defendant moved for summary judgment dismissing the complaint. In support of the motion, defendant established that it never received payment from plaintiff for any repairs and that it never submitted a claim for any alleged repairs to plaintiff. Plaintiff cross-moved for, inter alia, leave to amend the complaint. The proposed amended complaint contained, in addition to the aforementioned cause of action, a second cause of action asserting fraud, alleging that plaintiff had made the payments in question to a third party as a result of defendant's fraudulent representations to plaintiff concerning a purported covered incident in which defendant damaged the third-party's vehicle. Defendant opposed the cross motion, claiming that it would be prejudiced by such an amendment. The Civil Court denied defendant's motion for summary judgment dismissing the complaint and granted plaintiff's cross motion to the extent of granting plaintiff leave to amend the complaint to assert the cause of action sounding in fraud. [*2]

Defendant's motion for summary judgment should have been granted with respect to the cause of action based on unjust enrichment, since the evidence established that no payments were made by plaintiff to defendant for any repairs. However, plaintiff's cross motion should have been granted to the extent of granting leave to plaintiff to amend the complaint to assert the cause of action sounding in fraud. Leave to amend a pleading should be freely granted where, as here, the proposed amendment is not palpably insufficient or patently devoid of merit and will not prejudice or surprise the opposing party (see CPLR 3025 [b]; Crespo v Pucciarelli, 21 AD3d 1048, 1049 [2005]; Andrew Carothers, M.D., P.C. v GEICO Indem. Co., 20 Misc 3d 143[A], 2008 NY Slip Op 51756[U] [App Term, 9th & 10th Jud Dists 2008]).

Pesce, P.J., Weston and Golia, JJ., concur.
Decision Date: April 16, 2009