Curiale v. Ardra Insurance

223 A.D.2d 445, 636 N.Y.S.2d 777, 1996 N.Y. App. Div. LEXIS 477

Opinion

Order, Supreme Court, New York County (Karla Moskowitz, J.), entered. February 28, 1994, which denied the individual defendants’ motion to dismiss the fifth through eighth causes of action of the amended complaint, and order, same court and Justice, entered on or about July 7, 1994, which granted plaintiff’s motion to serve a second amended complaint, unanimously affirmed, without costs.

The case has not proceeded to the point where judicial estoppel would apply to prevent the requested amendments to the complaint (see, Hinman, Straub, Pigors & Manning v Broder, 124 AD2d 392, 393). The slow progress of the case, which has been noted by this Court on prior appeals (189 AD2d 217; 202 AD2d 252), is largely the fault of the individual defendants, and in light of that history, it is disingenuous for them to claim undue delay and surprise. Nor are the additional causes of action, which are merely new theories of recovery arising out of transactions and occurrences already in litigation, barred by the Statute of Limitations (Duffy v Horton Mem. Hosp., 66 NY2d 473, 477). Concur—Ellerin, J. P., Kupferman, Ross, Williams and Tom, JJ.