Tomasino v. American Tobacco Co.

*653Leave 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…