Eng v. Di Carlo

79 A.D.2d 1018, 435 N.Y.S.2d 336, 1981 N.Y. App. Div. LEXIS 9923

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 26, 1981
• Status: Published

Opinion

In an action to recover damages for personal injuries and wrongful death, the third-party defendant appeals from an older of the Supreme Court, Nassau County, dated October 15, 1979, which granted plaintiff’s motion to amend the complaint. Order affirmed, with $50 costs and disbursements payable to plaintiff by appellant. Plaintiff’s time to serve the amended complaint is extended until 20 days after service upon her of copy of the order to be made hereon, together with notice of entry thereof. The passage of time alone, without a further showing of prejudice, is insufficient to deny leave to amend a pleading (see Cerrato v Crown Co., 58 AD2d 721; Yerdon v Baldwinsville Academy, 39 AD2d 824), particularly where, as here, the proposed amendment merely changes the theory of recovery without alleging any new facts (see Cerrato v Crown Co., supra; Handley v Mirro Aluminum Co., 52 AD2d 1029; Rife v Union Coll., 30 AD 2d 504). No prejudice has been shown which would warrant denial of the motion to amend. Titone, J. P., Lazer, Gulotta and Margett, JJ., concur.