Whiteman Osterman & Hanna, LLP. v. Albany-Troy Neurosurgical Associates, P.C.

Lahtinen, J. Appeal from an order of the Supreme Court (Doyle, J.), entered February 5, 2007 in Albany County, which, among other things, granted defendants’ motion to amend their third-party complaint. Plaintiff commenced the underlying action against defendants seeking payment of unpaid legal fees. Defendants brought a third-party action against, among others, Joshua D. Powell, the former CEO of the corporate defendants, and Edward Scheid Jr., a physician formerly associated with the corporate defendants. Powell and Scheid made a pre-answer motion to dismiss the third-party action, which was denied, and while that motion was pending defendants applied for, among other things, leave to amend their pleading. Finding that no prejudice would inure to Powell and Scheid, Supreme Court granted defendants leave to amend their third-party complaint, but ordered that defendants pay costs and reasonable counsel fees incurred by Powell and Scheid in their unsuccessful motion to dismiss. Defendants appeal. Granting a party permission to amend a pleading may be subject to certain conditions, including costs and reasonable counsel fees (see e.g. Sheppard v Smith Well Drilling & Water Sys., 102 AD2d 919, 919-920 [1984]; Mirabella v Banco Indus. de la Republica Argentina, 34 AD2d 630, 630-631 [1970]). Nevertheless, not every situation supports the imposition of counsel fees (see Estate of Vitale v Eventquest, Inc., 38 AD3d 330, 331 [2007]). Upon review of this record, and noting that Powell and Scheid were unsuccessful in their motion to dismiss (and such ruling has some apparent relevance to the amended pleading that was filed), we exercise our discretion to reverse so much of the order as awarded counsel fees. Peters, J.E, Rose, Kane and Malone Jr., JJ., concur. Ordered that the order is modified, on the facts, without costs, by reversing so much thereof as directed defendants to pay counsel fees incurred by third-party defendants Joshua D. Powell and Edward Scheid Jr., and, as so modified, affirmed.