Capece v. Little Falls Urban Renewal Agency, Inc.

Appellate Division of the Supreme Court of New York

Capece v. Little Falls Urban Renewal Agency, Inc.

64 A.D.2d 1018, 409 N.Y.S.2d 301, 1978 N.Y. App. Div. LEXIS 13031

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

DecidedSeptember 22, 1978

StatusPublished

This text of 64 A.D.2d 1018 (Capece v. Little Falls Urban Renewal Agency, Inc.) 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.

Bluebook

Capece v. Little Falls Urban Renewal Agency, Inc., 64 A.D.2d 1018, 409 N.Y.S.2d 301, 1978 N.Y. App. Div. LEXIS 13031 (N.Y. Ct. App. 1978).

Pincite

Opinion

—Order unanimously reversed, with costs, and motion granted. Memorandum: Plaintiff’s moving papers demonstrate that [1019]*1019it was not clear until December, 1977, less than one month prior to bringing the motion, that the laminectomy had not been successful, that plaintiffs back discomfort had not lessened, and that, therefore, his disability was complete and he would probably not be returning to work. Defendants have failed to show that they would be prejudiced by the amendment; in fact, plaintiffs attorney put the defendants on notice of the likelihood of an amendment in his August, 1977 letter which apparently was not objected to by the defendants. It is well settled that in the absence of a showing of prejudice or surprise leave to amend pleadings " 'shall be freely given’ ” (Fahey v County of Ontario, 44 NY2d 934, 935; CPLR 3025). Under the circumstances, it was an improvident exercise of discretion to deny the motion. (Appeal from order of Herkimer Supreme Court—ad damnum clause.) Present—Marsh, P. J., Moule, Simons, Hancock, Jr., and Witmer, JJ.

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—Order unanimously reversed, with costs, and motion granted. Memorandum: Plaintiff’s moving papers demonstrate that [1019]*1019it was not clear until December, 1977, less than one month prior to bringing the motion, that the laminectomy had not been successful, that plaintiffs back discomfort had not lessened, and that, therefore, his disability was complete and he would probably not be returning to work. Defendants have failed to show that they would be prejudiced by the amendment; in fact, plaintiffs attorney put the defendants on notice of the likelihood of an amendment in his August, 1977 letter which apparently was not objected to by the defendants. It is well settled that in the absence of a showing of prejudice or surprise leave to amend pleadings " 'shall be freely given’ ” (Fahey v County of Ontario, 44 NY2d 934, 935; CPLR 3025). Under the circumstances, it was an improvident exercise of discretion to deny the motion. (Appeal from order of Herkimer Supreme Court—ad damnum clause.) Present—Marsh, P. J., Moule, Simons, Hancock, Jr., and Witmer, JJ.

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Bluebook (online)

64 A.D.2d 1018, 409 N.Y.S.2d 301, 1978 N.Y. App. Div. LEXIS 13031, Counsel Stack Legal Research, https://law.counselstack.com/opinion/capece-v-little-falls-urban-renewal-agency-inc-nyappdiv-1978.