Frenz v. Mettu

Appellate Division of the Supreme Court of New York

Frenz v. Mettu

15 A.D.3d 539, 789 N.Y.S.2d 897, 2005 N.Y. App. Div. LEXIS 1874

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

DecidedFebruary 22, 2005

StatusPublished

Cited by2 cases

This text of 15 A.D.3d 539 (Frenz v. Mettu) 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

Frenz v. Mettu, 15 A.D.3d 539, 789 N.Y.S.2d 897, 2005 N.Y. App. Div. LEXIS 1874 (N.Y. Ct. App. 2005).

Pincite

Opinion

In an action, inter alia, to recover damages for medical malpractice, the defendants appeal from a judgment of the Supreme Court, Westchester County (Bellantoni, J.), dated January 23, 2004, which, upon a jury verdict, and upon an order of the same court entered October 8, 2003, granting the plaintiffs’ motion for reargument, and upon reargument, in effect, vacating that portion of its prior order entered May 15, 2003, granting the defendants’ motion for leave to amend their answers to plead the affirmative defense of setoff as provided by General Obligations Law § 15-108, and denying that motion, is in favor of the plaintiff and against them in the principal sum of $395,000.

[540]*540Ordered that the judgment is reversed, on the law and as a matter of discretion, with costs, so much of the order dated October 8, 2003, as, upon granting the plaintiffs’ motion for re-argument, in effect, vacated that portion of the order entered May 15, 2003, granting the defendants’ motion for leave to amend their answers to plead the affirmative defense of setoff as provided by General Obligations Law § 15-108 and denied that motion is vacated, and upon reargument, so much of the order entered May 15, 2003, as granted the motion is adhered to, and the matter is remitted to the Supreme Court, Westchester County, for the entry of an amended judgment in accordance herewith.

In light of the plaintiffs failure to demonstrate prejudice or surprise, the Supreme Court improvidently exercised its discretion by, upon reargument, in effect, vacating that portion of its prior order entered May 15, 2003, granting the defendants’ motion for leave to amend their answers to plead the affirmative defense of setoff as provided by General Obligations Law § 15-108 and denying that motion (see CPLR 3025 [b]; Whalen v Kawasaki Motors Corp., U.S.A., 92 NY2d 288 [1998]; McCaskey, Davies & Assoc. v New York City Health & Hosps. Corp., 59 NY2d 755, 757 [1983]; Fahey v County of Ontario, 44 NY2d 934, 935 [1978]).

In light of this determination, the defendants’ remaining contentions need not be reached. Prudenti, P.J., Cozier, Ritter and Spolzino, JJ., concur.

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In an action, inter alia, to recover damages for medical malpractice, the defendants appeal from a judgment of the Supreme Court, Westchester County (Bellantoni, J.), dated January 23, 2004, which, upon a jury verdict, and upon an order of the same court entered October 8, 2003, granting the plaintiffs’ motion for reargument, and upon reargument, in effect, vacating that portion of its prior order entered May 15, 2003, granting the defendants’ motion for leave to amend their answers to plead the affirmative defense of setoff as provided by General Obligations Law § 15-108, and denying that motion, is in favor of the plaintiff and against them in the principal sum of $395,000.

[540]*540Ordered that the judgment is reversed, on the law and as a matter of discretion, with costs, so much of the order dated October 8, 2003, as, upon granting the plaintiffs’ motion for re-argument, in effect, vacated that portion of the order entered May 15, 2003, granting the defendants’ motion for leave to amend their answers to plead the affirmative defense of setoff as provided by General Obligations Law § 15-108 and denied that motion is vacated, and upon reargument, so much of the order entered May 15, 2003, as granted the motion is adhered to, and the matter is remitted to the Supreme Court, Westchester County, for the entry of an amended judgment in accordance herewith.

In light of the plaintiffs failure to demonstrate prejudice or surprise, the Supreme Court improvidently exercised its discretion by, upon reargument, in effect, vacating that portion of its prior order entered May 15, 2003, granting the defendants’ motion for leave to amend their answers to plead the affirmative defense of setoff as provided by General Obligations Law § 15-108 and denying that motion (see CPLR 3025 [b]; Whalen v Kawasaki Motors Corp., U.S.A., 92 NY2d 288 [1998]; McCaskey, Davies & Assoc. v New York City Health & Hosps. Corp., 59 NY2d 755, 757 [1983]; Fahey v County of Ontario, 44 NY2d 934, 935 [1978]).

In light of this determination, the defendants’ remaining contentions need not be reached. Prudenti, P.J., Cozier, Ritter and Spolzino, JJ., concur.

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Bluebook (online)

15 A.D.3d 539, 789 N.Y.S.2d 897, 2005 N.Y. App. Div. LEXIS 1874, Counsel Stack Legal Research, https://law.counselstack.com/opinion/frenz-v-mettu-nyappdiv-2005.

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