Opinion
April 29, 1965
Order entered March 15, 1965 denying defendant's motion for leave to serve an amended answer to plead an affirmative defense of release, unanimously reversed, on the law, on the facts and in the exercise of discretion, with $30 costs and disbursements to plaintiff-respondent, and the motion granted on condition defendant pays to plaintiff a counsel fee of $100 within 10 days after service of a copy of the order entered herein. Under CPLR 3025 leave to amend should be freely granted on such terms as may be just. Leave was denied here because the case was about to go to trial and, in the opinion of Special Term, in addition to the application being untimely, the granting of leave would be prejudicial to the plaintiff. However, it appears that the defense of release had been pleaded in an original answer but, through inadvertence, was not included in the amended answer served in response to an amended complaint. Thus, plaintiff had been on notice that defendant was going to rely on the defense of release. In fact, plaintiff had obtained a bill of particulars of that defense when it was pleaded in the original answer, and the defense had been the subject of an unsuccessful motion for summary judgment. Since plaintiff had full knowledge of the proposed defense, it cannot be seriously urged, in our opinion, that plaintiff would have been prejudiced by permitting the amendment. (See Arthur Pile Foundation Corp. v. Bonwit Constr. Co., 23 A.D.2d 540.) Nevertheless, the delay in making the motion requires the imposition of terms. Consequently, costs and disbursements of this appeal have been awarded to respondent, and the condition of payment of a counsel fee has been imposed.
Concur — Breitel, J.P., Rabin, Valente, Eager and Steuer, JJ.