Summary
upholding the trial court's grant of defendants' cross-motion to amend answer so as to add the affirmative defense of the statute of limitations in the absence of demonstrated prejudice to plaintiff
Summary of this case from N.Y. Cent. Ins. Co. v. Berdar Equities, Co.Opinion
Argued May 5, 1978
Decided June 15, 1978
Appeal from the Appellate Division of the Supreme Court in the Fourth Judicial Department, MARSHALL E. LIVINGSTON, J.
David G. Retchless, County Attorney (Max Cohen of counsel), for appellant.
Michael R. McGee for respondent.
MEMORANDUM.
The order of the Appellate Division should be reversed, without costs, appellant's motion for leave to serve an amended answer granted, and the certified question answered in the negative.
Leave to amend the pleadings "shall be freely given" absent prejudice or surprise resulting directly from the delay. (CPLR 3025, subd [b]; Sindle v New York City Tr. Auth., 33 N.Y.2d 293, 296-297.) Since the respondents cannot claim here such prejudice or surprise, the court below abused its discretion as a matter of law in denying appellant's motion to amend the answer to plead the Statute of Limitations. (Murray v City of New York, 43 N.Y.2d 400, 406.)
Chief Judge BREITEL and Judges JASEN, GABRIELLI, JONES, WACHTLER, FUCHSBERG and COOKE concur in memorandum.
Order reversed, etc.