Bazerman v. Gan-Thi Enterprises, Inc.

221 A.D.2d 578, 635 N.Y.S.2d 500, 1995 N.Y. App. Div. LEXIS 12431

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 27, 1995
• Status: Published

Opinion

—In an action to recover damages for personal injuries, etc., the plaintiffs appeal (1) from so much of an order of the Supreme Court, Kings County (Shaw, J.), dated June 22, 1994, as denied their motion pursuant to CPLR 3025 (b) for leave to amend the complaint to assert a cause of action pursuant to General Municipal Law § 205-e, and (2) as limited by their brief, from so much of an order of the same court, dated April 17, 1995, as, upon reargument, adhered to the original determination.

Ordered that the appeal from the order dated June 22, 1994, is dismissed since that order was superseded by the order dated April 17, 1995, made upon reargument; and it is further,

Ordered that the order dated April 17, 1995, is reversed insofar as appealed from, as a matter of discretion, so much of the order dated June 22, 1994, as denied the plaintiffs’ motion pursuant to CPLR 3025 (b) for leave to amend the complaint is vacated, and the motion is granted; and it is further,

Ordered that the appellants are awarded one bill of costs.

Since the defendants failed to demonstrate either prejudice or surprise, the Supreme Court improvidently exercised its discretion by denying the plaintiffs’ motion to amend the complaint (see, CPLR 3025 [b]; Fahey v County of Ontario, 44 NY2d 934). Balletta, J. P., Rosenblatt, Pizzuto, Joy and Altman, JJ., concur.