Opinion
May 15, 1995
Appeal from the Supreme Court, Kings County (Hutcherson, J.).
Ordered that the order is reversed, on the law and as a matter of discretion, with costs, the motion is granted, and the proposed amended answer is deemed served.
The additional defense asserted in the proposed amended answer is not "devoid of merit" with respect to the plaintiff's cause of action sounding in common-law negligence (see, Zanghi v Niagara Frontier Transp. Commn., 85 N.Y.2d 423; Hauptman v New York City Health Hosps. Corp., 162 A.D.2d 588). In view of the plaintiff's failure to demonstrate any prejudice which would result from the assertion of the defense, we conclude that the Supreme Court improvidently exercised its discretion in denying the appellant's motion (see, CPLR 3025 [b]; Fahey v County of Ontario, 44 N.Y.2d 934). Bracken, J.P., Rosenblatt, Krausman and Goldstein, JJ., concur.