APONTE v. BRENTWOOD UNION FREE SCHOOL DIST

ORDERED that the order is reversed, on the law, with costs, the motion is denied, and the complaint is reinstated.

While leave to amend a pleading should be freely given (see, CPLR 3025 N.Y.CPLR[b]), the decision whether to grant such leave is within the court's discretion (see, Edenwald Contr. Co. v. City of New York, 60 N.Y.2d 957, 959; Mayers v. D'Agostino, 58 N.Y.2d 696). However, where the proposed amendment is palpably insufficient as a matter of law or is totally devoid of merit, leave should be denied (see, Tarantini v. Russo Realty Corp., 259 A.D.2d 484; Alejandro v. Riportella, 250 A.D.2d 556; Sentry Ins. Co. v. Kero-Sun, Inc., 122 A.D.2d 204). Contrary to the defendants' contention, the Statute of Limitations was tolled for the applicable period of infancy even though the infant plaintiff timely filed a notice of claim pursuant to General Municipal Law § 50-e Gen. Mun. (see, Henry v. City of New York, N.Y.2d [Dec. 20, 1999]; CPLR 208 N.Y.CPLR).

MANGANO, P.J., SANTUCCI, KRAUSMAN, FLORIO, and SCHMIDT, JJ., concur.