Sometimes, a plaintiff will fail to include a particular claim against a defendant and will seek to amend the complaint to include the claim. However, if the amendment of the complaint does not assert a cause of action against the defendant on the new claim, the court may deny the motion. In Panos v Eisen, 160 AD3d 759 [2d Dept 2018], the court held:
The Supreme Court should have denied that branch of the plaintiff’s cross motion which was for leave to amend the complaint to assert a cause of action against the defendants to recover damages for breach of fiduciary duty. “ Although leave to amend a pleading should be freely given in the absence of prejudice or surprise to the opposing party (see CPLR 3025 [b] ), the motion should be denied where the proposed amendment is palpably insufficient or patently devoid of merit ” (APF Mgt. Co., LLC v. Munn, 151 A.D.3d 668, 670, 56 N.Y.S.3d 514). Here, the plaintiff proposed to amend the complaint to assert a cause of action against the defendants to recover damages for breach of fiduciary duty. However, this cause of action is based on the same underlying facts as the legal malpractice cause of action and does not allege distinct damages. Therefore, the proposed breach of fiduciary duty cause of action was duplicative of the legal malpractice cause of action (see Schwartz v. Leaf, Salzman, Manganelli, Pfiel & Tendler, LLP, 123 A.D.3d 901, 902, 999 N.Y.S.2d 444; Keness v. Feldman, Kramer & Monaco, P.C., 105 A.D.3d 812, 813–814, 963 N.Y.S.2d 313; Kvetnaya v. Tylo, 49 A.D.3d 608, 609, 854 N.Y.S.2d 425).
