
    Justin D. Tomasino, Respondent, v American Tobacco Company et al., Defendants, and Lorillard Tobacco Company et al., Appellants.
    [871 NYS2d 180]
   Leave to amend an answer to assert an affirmative defense generally should be granted where the proposed amendment is neither palpably insufficient nor patently devoid of merit, and there is no evidence that it would prejudice or surprise the opposing party (see CPLR 3025 [b]; Matter of Roberts v Borg, 35 AD3d 617 [2006]; Public Adm’r of Kings County v Hossain Constr. Corp., 27 AD3d 714 [2006]).

The Supreme Court denied those branches of the appellants’ motions which were for leave to amend their respective answers to assert the affirmative defense of res judicata with respect to the plaintiffs punitive damages claims, upon concluding that the defense is patently devoid of merit.

Contrary to the Supreme Court’s conclusion, the proposed defense of res judicata in this case is neither palpably insufficient nor patently devoid of merit (see Fabiano v Philip Morris Inc., 54 AD3d 146 [2008]). Furthermore, the plaintiff failed to demonstrate that he would be prejudiced or surprised by the proposed amendment.

Accordingly, the Supreme Court should have granted those branches of the appellants’ separate motions which were for leave to amend their respective answers to assert the defense of res judicata with respect to the plaintiffs punitive damages claims. Mastro, J.P., Florio, Eng and Chambers, JJ., concur. (See 2007 NY Slip Op 33001(U).]  