Delgado v. 27-51 Jackson Ave LLC

Delgado v 27-51 Jackson Ave LLC 2026 NY Slip Op 05593 October 1, 2026 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This decision is uncorrected and subject to revision before publication in the Official Reports. Jeison Ramirez Delgado, Plaintiff-Respondent, v 27-51 Jackson Ave LLC, et al., Defendants. 27-51 Jackson Ave LLC, et al., Third-Party Plaintiffs, Decided and Entered: October 01, 2026 Index No. 817495/22|Appeal No. 7124|Case No. 2025-03408| Before: Moulton, J.P., Kennedy, Friedman, Michael, Hagler, JJ. Brody Law Group, PLLC, New York (Magdalene P. Skountzos of counsel), for appellant. Hogan & Cassell, LLP, Jericho (Michael Cassell of counsel), for respondent. [*1] Order, Supreme Court, Bronx County (Shawn T. Kelly, J.), entered on or about April 10, 2025, which denied third-party defendant/second third-party plaintiff All State 12 General Contracting Corp.'s motion for leave to amend its answer to assert against plaintiff an additional affirmative defense and a counterclaim, both sounding in fraud, unanimously affirmed, without costs. A court should freely grant a motion to amend a pleading where the amendment is not patently lacking in merit and there is no prejudice to the nonmoving party (Garcia v Monadnock Constr., Inc., 235 AD3d 96, 98 [1st Dept 2025], affd on other grounds — NY3d —, 2026 NY Slip Op 03217 [2026]). Supreme Court correctly found that that All State's proposed amended answer lacked merit, as it failed to plead the elements of fraud with particularity as required by CPLR 3016(b) (see Eruycleia Partners, LP v Seward & Kissel, LLP, 12 NY3d 553, 559 [2009]; Breton v Dishi, 234 AD3d 432, 432 [1st Dept 2025]). The existence of other lawsuits alleging fraud against plaintiff's medical providers, but where fraud is unproven to date, is insufficient to establish that plaintiff made a misrepresentation of fact (see Anguisaca-Morales v St. Paul & St. Andrew United Methodist Church, 238 AD3d 439, 440 [1st Dept 2025]; Linares v City of New York, 233 AD3d 479, 480 [1st Dept 2024]). This is especially true where, as here, plaintiff is neither a defendant nor otherwise referenced in the other lawsuits on which All State relies (see Carranza-Rafael v LRC Constr. LLC, 250 AD3d 507, 509 [1st Dept 2026]). Moreover, "that plaintiff shares and has shared an address with many other workers' compensation claimants and personal injury plaintiffs does not in and of itself establish that plaintiff's specific claims in this case are fraudulent" (Santacruz v 58 Gerry St LLC, 246 AD3d 600, 600 [1st Dept 2026]). We have considered All State's remaining arguments and find them unavailing.. THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT. ENTERED: October 1, 2026