Opinion
2015-11-4
Adetunji D. JEBODA, respondent, v. Steven A. DANZA, appellant.
Hannum Feretic Prendergast & Merlino, LLC, New York, N.Y. (Vera Tsai of counsel), for appellant. Arthur M. Unterman, Brooklyn, N.Y., for respondent.
Hannum Feretic Prendergast & Merlino, LLC, New York, N.Y. (Vera Tsai of counsel), for appellant. Arthur M. Unterman, Brooklyn, N.Y., for respondent.
REINALDO E. RIVERA, J.P., THOMAS A. DICKERSON, JOSEPH J. MALTESE, and HECTOR D. LaSALLE, JJ.
In an action to recover damages for personal injuries, the defendant appeals from so much of an order of the Supreme Court, Kings County (Bayne, J.), dated October 1, 2014, as denied that branch of his motion which was pursuant to CPLR 3025(b) for leave to amend his answer to assert the affirmative defense that, at the time of the subject accident, his vehicle was being operated without his permission.
ORDERED that the order is reversed insofar as appealed from, on the law and in the exercise of discretion, with costs, and that branch of the defendant's motion which was for leave to amend his answer to assert the affirmative defense that, at the time of the subject accident, his vehicle was being operated without his permission is granted.
Permission to amend a pleading should be “freely given” (CPLR 3025[b]; see Edenwald Contr. Co. v. City of New York, 60 N.Y.2d 957, 959, 471 N.Y.S.2d 55, 459 N.E.2d 164). Leave to amend an answer to assert an affirmative defense should generally be granted where the proposed amendment is neither palpably insufficient nor patently devoid of merit, and there is no evidence that it would prejudice or surprise the opposing party ( see Giuffre v. DiLeo, 90 A.D.3d 602, 603, 934 N.Y.S.2d 449; Matter of Roberts v. Borg, 35 A.D.3d 617, 618, 826 N.Y.S.2d 409; Public Adm'r of Kings County v. Hossain Constr. Corp., 27 A.D.3d 714, 815 N.Y.S.2d 621). Here, the defendant sufficiently alleged that the driver of his vehicle did not have his permission or consent to operate his vehicle at the time of the subject accident ( see Murdza v. Zimmerman, 99 N.Y.2d 375, 380, 756 N.Y.S.2d 505, 786 N.E.2d 440; Han v. BJ Laura & Son, Inc., 122 A.D.3d 591, 592, 996 N.Y.S.2d 132; Matter of State Farm Ins. Co. v. Walker–Pinckney, 118 A.D.3d 712, 713, 986 N.Y.S.2d 626). The proposed affirmative defense set forth allegations based on factual matters that are not palpably insufficient or patently devoid of merit ( see Katz v. Castlepoint Ins. Co., 121 A.D.3d 948, 950, 995 N.Y.S.2d 131; Finkelstein v. Lincoln Natl. Corp., 107 A.D.3d 759, 761, 967 N.Y.S.2d 733; Lucido v. Mancuso, 49 A.D.3d 220, 229, 851 N.Y.S.2d 238).
Furthermore, mere lateness is not a basis for denying an amendment unless the lateness is coupled with “ ‘significant prejudice to the other side’ ” (Public Adm'r of Kings County v. Hossain Constr. Corp., 27 A.D.3d at 716, 815 N.Y.S.2d 621, quoting Edenwald Contr. Co. v. City of New York, 60 N.Y.2d at 959, 471 N.Y.S.2d 55, 459 N.E.2d 164; see Giuffre v. DiLeo, 90 A.D.3d at 603, 934 N.Y.S.2d 449). Although the defendant waited over 1 1/2 years before moving for leave to amend the answer, there was no showing that the plaintiff would be significantly prejudiced, as discovery was ongoing ( see Giuffre v. DiLeo, 90 A.D.3d at 603, 934 N.Y.S.2d 449). Accordingly, the Supreme Court should have granted that branch of the defendant's motion which was for leave to amend his answer to assert the affirmative defense that, at the time of the subject accident, his vehicle was being operated without his permission.