Fitzpatrick v. Structure Tone, Inc.

201 A.D.2d 373, 607 N.Y.S.2d 928, 1994 N.Y. App. Div. LEXIS 1374

Opinion

Amended judgment, Supreme Court, New York County (Alfred Toker, J.), entered on or about April 21, 1992 which, insofar as appealed from, dismissed the third-party complaint against Forest Electric Corporation, unanimously modified, on the law, without costs or disbursements, the third-party complaint reinstated and third-party plaintiff’s motion to amend said complaint to include a cause of action alleging the failure of third-party defendant Forest Electric Corporation ("Forest”) to procure insurance, granted.

The trial court erred in denying third-party plaintiff Structure Tone’s motion to amend its third-party complaint to allege Forest’s breach of contract in failing to procure insurance. There was no showing that granting such leave would surprise or otherwise prejudice Forest in any way, breach of contract having already been pleaded in the dismissed cause of action based on an indemnity clause, and mere delay in moving to amend, absent significant prejudice, is not a barrier to amendment (Detrinca v De Fillippo, 165 AD2d 505, 508). Concur — Sullivan, J. P., Wallach, Rubin and Nardelli, JJ.