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RUBY LAND DEVELOPMENT LTD., plaintiff-respondent, v. ROBERT TOUSSIE, ET AL., defendants-respondents, HSBC BANK USA, AS SUCCESSOR IN INTEREST TO FIRST FEDERAL SAVINGS AND LOAN ASSOCIATION OF ROCHESTER, defendant-appellant.

DECISION ORDER

ORDERED that the order is modified, on the law, by deleting the provision thereof denying that branch of the appellant's motion which was for summary judgment dismissing the cross claim of the defendants Robert Toussie and Paltrrz Corporation insofar as asserted against it and substituting therefor a provision granting that branch of the motion; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.

The Supreme Court providently exercised its discretion in granting the plaintiff leave to amend its complaint. Leave to amend a pleading should be freely given ( see CPLR 3025[b]), provided the amendment is not palpably insufficient, does not prejudice or surprise the opposing party, and is not patently devoid of merit ( see Fahey v. County of Ontario, 44 N.Y.2d 934, 935). Here, the plaintiff moved promptly for leave to amend its complaint, and the appellant was unable to show any surprise or prejudice. Nor does it appear that the proposed amendment was patently devoid of merit ( see Goldstein v. St. John's Episcopal Hosp., 267 A.D.2d 426).

However, the Supreme Court should have granted that branch of the appellant's motion which was for summary judgment dismissing the cross claim of the defendants Robert Toussie and Paltrrz Corporation seeking contribution. Since the complaint seeks damages solely for economic loss resulting from a breach of contract, contribution is unavailable ( see Board of Educ. of Hudson City School Dist. v. Sargent, Webster, Crenshaw Folley, 71 N.Y.2d 21, 28; Rockefeller Univ. v. Tishman Const. Corp. of N.Y., 232 A.D.2d 155).

The appellant's remaining contentions are without merit.

ALTMAN, J.P., LUCIANO, ADAMS and COZIER, JJ., concur.

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RUBY LAND DEVELOPMENT LTD. v. TOUSSIE
(Feb 23, 2004)