Griffin v. Town of Providence

97 A.D.2d 885, 470 N.Y.S.2d 474, 1983 N.Y. App. Div. LEXIS 20675

Opinion

Appeal from an order of the Supreme Court at Special Term (Walsh, Jr., J.), entered October 27, 1982 in Saratoga County, which granted a motion by defendant County of Saratoga for leave to serve an amended answer. This is an action to recover for personal injuries sustained by plaintiff on June 20, 1980 by reason of the alleged dangerous and defective condition of the highway, causing plaintiff to be thrown from her motorcycle. The instant action was commenced against defendant county in September of 1981. The answer to the complaint was served on October 26,1981. Thereafter on September 17, 1982, the county moved to amend its answer to include an affirmative defense of Local Law No. 3 of the County of Saratoga of 1978. Specifically, the local law in question requires a party to give prior written notice of highway defects. Special Term granted the motion and this appeal by plaintiff ensued. As a general rule, leave to amend pleadings is within the discretion of the court and is freely granted absent prejudice to the party moved against (CPLR 3025, subd lb]). Considering the present record in its entirety, we find no legal prejudice to plaintiff and, consequently, are unable to conclude that Special Term abused its discretion in granting the motion. There should be an affirmance (Petrozzi v Passamonte, 32 AD2d 716; Van Wie v Gridley & Son, 21 AD2d 842). Order affirmed, without costs. Sweeney, J. P., Kane, Main, Mikoll and Levine, JJ., concur.