THE ONEIDA INDIAN NATION, A SOVEREIGN NATION, PLAINTIFF-APPELLANT,
HUNT CONSTRUCTION GROUP, INC., DEFENDANT-RESPONDENT.
Appeal from an order of the Supreme Court, Onondaga County (Deborah H. Karalunas, J.), entered September 11, 2012. The order granted the motion of defendant seeking leave to amend its first amended answer.
WILLIAMS & CONNOLLY LLP, WASHINGTON, D.C. (DENNIS M. BLACK, OF THE WASHINGTON, D.C. AND MARYLAND BARS, ADMITTED PRO HAC VICE, OF COUNSEL), AND MACKENZIE HUGHES LLP, SYRACUSE, FOR PLAINTIFF-APPELLANT.
PILLSBURY WINTHROP SHAW PITTMAN LLP, WASHINGTON, D.C., HANCOCK ESTABROOK LLP, SYRACUSE (JOHN G. POWERS OF COUNSEL), FOR DEFENDANT-RESPONDENT.
PRESENT: CENTRA, J.P., FAHEY, CARNI, AND SCONIERS, JJ.
It is hereby ORDERED that the order so appealed from is unanimously reversed on the law without costs and the motion is denied.
Memorandum: Plaintiff appeals from an order that granted the motion of defendant seeking leave to amend its first amended answer to assert an affirmative defense and a counterclaim, for recoupment. We agree with plaintiff that Supreme Court erred in granting the motion inasmuch as it is well settled that such leave "should not be granted where, as here, the proposed amendment lacks merit" (Hodgson, Russ, Andrews, Woods & Goodyear v Isolatek Intl. Corp., 300 A.D.2d 1047, 1048; see Handville v MJP Contrs., Inc., 77 A.D.3d 1471, 1473). In order for a claim of equitable recoupment to survive, a party must have a "legally subsisting cause of action [or counterclaim] upon which it could maintain an independent claim" (Telmark, Inc. v C & R Farms [appeal No. 2], 115 A.D.2d 966, 967; see generally Eber-NDC, LLC v Star Indus., Inc., 42 A.D.3d 873, 876). Here, defendant's recoupment affirmative defense and counterclaim are based upon extra-contractual claims that were dismissed on a prior appeal when asserted as independent causes of action (Oneida Indian Nation v Hunt Constr. Group, Inc., 88 A.D.3d 1264, 1265). Inasmuch as defendant no ...