Boesch v. Nishball

283 A.D.2d 534, 725 N.Y.S.2d 851, 2001 N.Y. App. Div. LEXIS 6575

Opinion

—In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Dutchess County (Pagones, J.), dated August 22, 2000, which denied his motion for leave to amend his answer to interpose an affirmative defense of medical emergency.

Ordered that the order is reversed, with costs, the motion is granted, and the defendant’s amended answer is deemed served.

Motions for leave to amend pleadings are to be liberally granted absent prejudice or surprise resulting directly from the delay (see, CPLR 3025 [b]; McCaskey, Davies & Assocs. v New York City Health & Hosps. Corp., 59 NY2d 755, 757; Fahey v County of Ontario, 44 NY2d 934, 935), unless the amendment is palpably insufficient or clearly without merit (see, Alejandro v Riportella, 250 AD2d 556; Sentry Ins. Co. v Kero-Sun, Inc., 122 AD2d 204; Norman v Ferrara, 107 AD2d 739). The Supreme Court improvidently exercised its discretion in denying the defendant’s motion for leave to amend his answer to assert the affirmative defense of medical emergency, as that defense is not clearly without merit, and the plaintiff failed to establish prejudice or surprise (see, Ficorilli v Thomsen, 262 AD2d 602; Alejandro v Riportella, supra). Santucci, J. P., Florio, Schmidt and Adams, JJ., concur.