Cutwright v. Central Brooklyn Urban Development Corp.

127 A.D.2d 731, 512 N.Y.S.2d 128, 1987 N.Y. App. Div. LEXIS 43219

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 17, 1987
• Status: Published

Opinion

In an action, inter alia, to recover damages for fraud, the defendant Central Brooklyn Urban Development Corporation appeals from an order of the Supreme Court, Kings County (Golden, J.), dated May 16, 1986, which denied its motion for leave to serve an amended verified answer.

Ordered that the order is reversed, without costs or disbursements, the motion is granted, and the proposed amended verified answer is deemed served.

As a general rule, motions for leave to serve amended pleadings should be liberally granted unless the rights of the parties are substantially prejudiced (Andersen v University of Rochester, 91 AD2d 851). Where the party opposing a motion to serve an amended pleading cannot demonstrate prejudice resulting directly from the delay, denial of the motion has been deemed an abuse of discretion (see, Murray v City of New York, 43 NY2d 400, rearg dismissed 45 NY2d 966; Caruso v Hoyer & Co., 79 AD2d 670, 671).

Inasmuch as all of the affirmative defenses and counterclaims sought to be interposed via the proposed amended verified answer are supported by facts already developed and known to both parties since the inception of the case, the granting of the subject motion would not unduly prejudice the plaintiffs. Significantly, this case was not even on the Trial Calendar when the motion for leave to serve the amended verified answer was made. In the absence of such factors as substantial prejudice to the plaintiffs, or the patent futility of the proposed amendment, the trial court abused its discretion in denying the appellant’s motion. Brown, J. P., Weinstein, Rubin and Spatt, JJ., concur.