Opinion
November 16, 1995
Appeal from the Supreme Court, New York County (William J. Davis, J.).
In this action, two partners of a would be accounting partnership that never came into being seek to recover the pro rata share of the rent due for an approximate four-year period from the third intended partner under a lease signed by all three parties, based, apparently, on an October 20, 1987 oral agreement. Defendant never interposed the affirmative defense of statute of frauds as to the oral agreement, a fact which we noted in the context of its having been waived as a result thereof when this matter was before us on an earlier appeal ( 204 A.D.2d 221). When we spoke of waiver we meant under the particular answer at issue and did not imply, as the IAS Court believed, that defendant was forever foreclosed from amending his answer. Leave to amend "shall be freely given" "at any time" (CPLR 3025 [b]), even as to defenses deemed "waived" pursuant to CPLR 3211 (e) when not raised "'either by * * * motion or in the responsive pleading.'" ( Pegno Constr. Corp. v City of New York, 95 A.D.2d 655, 656.)
Concur — Murphy, P.J., Sullivan, Rosenberger and Ross, JJ.