Household Fin. Corp. III v Etseyatse (2009 NY Slip Op 52218(U))

Household Fin. Corp. III v Etseyatse

2009 NY Slip Op 52218(U) [25 Misc 3d 134(A)]

Decided on October 23, 2009

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This opinion is uncorrected and will not be published in the printed Official Reports.

Household Finance Corp. , Appellant,

against

Henry A. Etseyatse, Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Genine D. Edwards, J.), entered July 24, 2008. The order denied plaintiff's motion for leave to amend the complaint to add a party defendant.

ORDERED that the order is reversed without costs and plaintiff's motion for leave to amend the complaint to add a party defendant is granted.

Plaintiff commenced this action to recover for breach of a loan agreement. Defendant initially defaulted in the action, and a judgment was entered against him. In a motion to vacate the judgment, defendant alleged, inter alia, that he was a victim of identity theft and he had never obtained a loan from plaintiff. By order dated January 29, 2007, the Civil Court (Peter Paul Sweeney, J.) vacated the default judgment.
Thereafter, plaintiff moved for leave to amend the complaint to add "Gloria A. Otomewo" as a party to the action, asserting her liability for breach of "quasi-contract" or, in the alternative, based upon unjust enrichment and fraud, on a showing that Otomewo had made payments pursuant to the agreement. The Civil Court denied the motion on the ground that "plaintiff failed to establish Gloria A. Otomewo's responsibility on the loan." This appeal ensued.

Under the circumstances presented, plaintiff's motion for leave to amend the complaint should have been granted. Plaintiff alleged facts in the amended complaint which, if proven true, could subject Otomewo to personal liability under the loan agreement being sued upon (see Enriquez v Home Lawn Care & Landscaping, Inc., 49 AD3d 496 [2008]). Leave to amend the complaint is to be freely granted, provided the proposed amendment does not prejudice or [*2]surprise the defendant, is not palpably insufficient, and is not patently devoid of merit (see CPLR 3025 [b]; Kinzer v Bederman, 59 AD3d 496 [2009]; Lucido v Mancuso, 49 AD3d 220, 227 [2008]). CPLR 3025 does not require an evidentiary showing of merit for the proposed amendment (Lucido, 49 AD3d at 229). The proposed amended complaint in this case is not palpably insufficient or patently devoid of merit. Furthermore, there is no showing of any prejudice. Accordingly, plaintiff's motion for leave to amend the complaint to add a party defendant (see CPLR 1003) is granted.