Truebright Co., Ltd. v Lester ; 2011 NY Slip Op 04235 ; ;Appellate Division, Second Department is yet another example of a lost legal malpractice case, but not based upon the innocence or non-departure of the attorney. In fact, just as in a recent case dismissed because the statute of limitations had passed on a case the attorney failed to file, here, there was a lack of capacity to sue. Was it a bankruptcy filing that killed the capacity? Was it a sale of the business to another that killed the capacity? We do not know.
 

What we do know is:

"Under the circumstances, the Supreme Court did not improvidently exercise its discretion when it, in effect, granted the defendant’s motion for leave to amend his answer, as the proposed amendment was neither palpably insufficient nor patently devoid of merit, and there was no evidence that it would prejudice or surprise the plaintiffs (see CPLR 3025 [b]; Matter of Roberts v Borg, 35 AD3d 617, 618; Public Adm’r of Kings County v Hossain Constr. Corp., 27 AD3d 714, 716). To the extent that the plaintiffs "wish[ ] to test the merits of the proposed added . . . defense, [they] may . . . move for summary judgment upon a proper showing" (Lucido v Mancuso, 49 AD3d 220, 229). "