Bilhorn v. Farlow

Appellate Division of the Supreme Court of New York

Bilhorn v. Farlow

60 A.D.2d 755, 401 N.Y.S.2d 115, 1977 N.Y. App. Div. LEXIS 14802

CourtAppellate Division of the Supreme Court of the State of New York

DecidedDecember 9, 1977

StatusPublished

Cited by11 cases

This text of 60 A.D.2d 755 (Bilhorn v. Farlow) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Bilhorn v. Farlow, 60 A.D.2d 755, 401 N.Y.S.2d 115, 1977 N.Y. App. Div. LEXIS 14802 (N.Y. Ct. App. 1977).

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Opinion

Order unanimously reversed, without costs, and motion granted. Memorandum: Plaintiffs seek to amend their complaint a second time. We believe that Special Term’s denial of the application was an improvident exercise of discretion. Although the granting of such a motion is within the sound discretion of the court, leave to amend should be freely granted in the absence of a showing of prejudice (CPLR 3025, subd [b]; e.g., Albany Crane Serv. v Pettibone Mulliken Corp., 54 AD2d 794). Plaintiffs state reasonable grounds for amendment and the same basic facts are alleged as in the former complaint (see Handley v Mirro Aluminum Co., 52 AD2d 1029). The proposed amended complaint merely sets forth additional theories based upon those facts (see Dittmar Explosives v A. E. Ottaviano, Inc., 20 NY2d 498, 502; Cerrato v Crown Co., 58 AD2d 721; Deiso v Mobil Oil Corp., 56 AD2d 621; Gardner v Fyr-Fyter Co., 55 AD2d 816; Watso v City of New York, 39 AD2d 960; cf. Yerdon v Baldwinsville Academy, 39 AD2d 824). Defendants have made no showing of prejudice, their ability to present a defense at trial will not be affected and there will be no trial delay. Furthermore, that the claims in the proposed amended complaint may have been barred by the Statute of Limitations in a separate action de novo does not affect the granting of relief. There is a relation back as long as the original pleading gives the adverse party sufficient notice of the transactions out of which these claims arise (CPLR 203, subd [e]; Cerrato v Crown Co., supra; see Gardner v Fyr-Fyter Co., supra; Owens v Palm Tree Nursing Home, 50 AD2d 865; Palmer v New York City Tr. Auth., 37 AD2d 766; cf. Smith v University of Rochester Med. Center, 32 AD2d 736). The first amended complaint herein does give such notice and, accordingly, plaintiffs’ motion should have been granted. (Appeal from order of Monroe Supreme Court—amend complaint.) Present—Moule, J. P., Cardamone, Simons, Hancock, Jr., and Denman, JJ.

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Order unanimously reversed, without costs, and motion granted. Memorandum: Plaintiffs seek to amend their complaint a second time. We believe that Special Term’s denial of the application was an improvident exercise of discretion. Although the granting of such a motion is within the sound discretion of the court, leave to amend should be freely granted in the absence of a showing of prejudice (CPLR 3025, subd [b]; e.g., Albany Crane Serv. v Pettibone Mulliken Corp., 54 AD2d 794). Plaintiffs state reasonable grounds for amendment and the same basic facts are alleged as in the former complaint (see Handley v Mirro Aluminum Co., 52 AD2d 1029). The proposed amended complaint merely sets forth additional theories based upon those facts (see Dittmar Explosives v A. E. Ottaviano, Inc., 20 NY2d 498, 502; Cerrato v Crown Co., 58 AD2d 721; Deiso v Mobil Oil Corp., 56 AD2d 621; Gardner v Fyr-Fyter Co., 55 AD2d 816; Watso v City of New York, 39 AD2d 960; cf. Yerdon v Baldwinsville Academy, 39 AD2d 824). Defendants have made no showing of prejudice, their ability to present a defense at trial will not be affected and there will be no trial delay. Furthermore, that the claims in the proposed amended complaint may have been barred by the Statute of Limitations in a separate action de novo does not affect the granting of relief. There is a relation back as long as the original pleading gives the adverse party sufficient notice of the transactions out of which these claims arise (CPLR 203, subd [e]; Cerrato v Crown Co., supra; see Gardner v Fyr-Fyter Co., supra; Owens v Palm Tree Nursing Home, 50 AD2d 865; Palmer v New York City Tr. Auth., 37 AD2d 766; cf. Smith v University of Rochester Med. Center, 32 AD2d 736). The first amended complaint herein does give such notice and, accordingly, plaintiffs’ motion should have been granted. (Appeal from order of Monroe Supreme Court—amend complaint.) Present—Moule, J. P., Cardamone, Simons, Hancock, Jr., and Denman, JJ.

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60 A.D.2d 755, 401 N.Y.S.2d 115, 1977 N.Y. App. Div. LEXIS 14802, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bilhorn-v-farlow-nyappdiv-1977.

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