Brenner v. New York City Board of Education

262 A.D.2d 342, 691 N.Y.S.2d 578, 1999 N.Y. App. Div. LEXIS 6325

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 7, 1999
• Status: Published

Opinion

—In an action to recover damages for personal injuries, etc., the defendant Edward Trerise appeals from an order of the Supreme Court, Kings County (Steinhardt, J.), dated May 18, 1998, which denied his motion for summary judgment dismissing the complaint insofar as asserted against him and granted the plaintiffs’ cross motion for leave to serve an amended complaint.

Ordered that the order is affirmed, with costs to the respondents payable by the appellant.

The Supreme Court properly denied the motion of the defendant Edward Trerise for summary judgment because he failed to demonstrate his prima facie entitlement thereto, and properly granted the plaintiffs’ motion for leave to serve an amended complaint because it simply alleged a new theory of recovery based upon facts contained in the original complaint (see, CPLR 3212 [b]; Barraza v Sambade, 212 AD2d 655; Matter of Edwards v Board of Educ., 32 AD2d 690; Masters v Becker, 22 AD2d 118).

The appellant’s remaining contentions are without merit (see, CPLR 2004; Tewari v Tsoutsouras, 75 NY2d 1, 12-13). Krausman, J. P., McGinity, Feuerstein and Smith, JJ., concur.