Opinion
Submitted April 28, 1999
June 14, 1999
In an action to recover damages for personal injuries, etc., the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Queens County (Milano, J.), dated December 5, 1997, as denied their motion for leave to serve an amended complaint asserting a cause of action for breach of warranty.
Michael A. Cervini, Jackson Heights, N.Y. (Robin Mary Heaney of counsel), for appellants.
Furey, Kerley, Walsh, Matera Cinquemani, P.C., Mineola, N Y (Lauren B. Bristol of counsel), for respondent.
SONDRA MILLER, J.P., THOMAS R. SULLIVAN, WILLIAM D. FRIEDMANN, SANDRA J. FEUERSTEIN, JJ.
DECISION ORDER
ORDERED that the order is reversed insofar as appealed from, with costs, the motion is granted, the amended complaint is deemed served, and the defendant's time to answer is enlarged to 20 days after service upon it of a copy of this decision and order with notice of entry.
The Supreme Court erred in its determination that the plaintiffs' proposed amended complaint was untimely. The plaintiffs' breach of warranty claim arose from the same occurrences as gave rise to their other timely claims. Accordingly, the plaintiffs' warranty claim is deemed interposed as of the time the claims in the original pleading were interposed (CPLR 203[f]; see, Banfi Prods. Corp. v. Gentile, 236 A.D.2d 348; Curiale v. Ardra Ins. Co., 223 A.D.2d 445; Howard v. State of New York, 175 A.D.2d 634).
Leave to serve an amended pleading should be freely granted in the absence of prejudice to the nonmoving party ( see, Watson v. Getman, 260 A.D.2d 472 [2d Dept., Apr. 12, 1999]; Huntington v. Frank Trotta Auto Wreckers, 257 A.D.2d 647 [2d Dept., Jan. 25, 1999]; Weeden v. Corzo Constr. Co., 240 A.D.2d 732). Under the circumstances of this case, and in the absence of any demonstrable prejudice, the plaintiffs' motion should have been granted ( see, Berkun v. National Health Resources, 255 A.D.2d 476 [2d Dept., Nov. 23, 1998]; Weitzenberg v. Nassau County Dept. of Recreation Parks, 249 A.D.2d 538).