Amin v. McGuire

43 A.D.2d 578, 349 N.Y.S.2d 413, 1973 N.Y. App. Div. LEXIS 3120

Opinion

In a negligence action to recover damages for personal and property injuries, defendant appeals (by permission) from an order of the Appellate Term of the Supreme Court, 2nd and 11th Judicial Districts, dated May 22, 1973, which granted plaintiff’s motion for reargument and, upon reargument, recalled an order of said court dated March 12, 1973 and affirmed two orders of the Civil Court of the City of New York, Queens County, the first dated April 14, 1972, which denied defendant’s motion for leave to serve an amended answer, and the second dated June 20,1972, which denied his renewed motion for the same relief. Order of the Appellate Term dated May 22, 1973 reversed, without costs, order of said court dated March 12,1973 reinstated, and motion for reargument denied. In our opinion the five-month delay occasioned by defendant’s failure to plead his proposed affirmative defense in his original answer does not constitute a sufficient basis to deny the relief sought, in view of the fact that no significant prejudice resulting from the delay is urged by plaintiff on this appeal. Moreover, we note that the condition imposed by the order of the Appellate Term dated March 12, 1973, which granted defendant leave to amend upon the payment by defendant’s attorneys to plaintiff of $200, has already been satisfied. Upon the argument of this appeal it was made clear that plaintiff has retained the $200. A party may not be permitted to urge the invalidity of a judicial determination while he retains the benefits of a condition imposed by the determination. Under the circumstances, plaintiff should not have prevailed on his motion for reargument in the Appellate Term. Shapiro, Acting, P. J., Gulotta, Christ, Brennan and Benjamin, JJ., concur.