Haggerty v. Everett Realty

21 A.D.3d 268, 800 N.Y.S.2d 7

Opinion

Order, Supreme Court, New York County (Debra A. James, J.), entered April 23, 2004, which, insofar as appealed from as limited by the briefs, granted the motion by defendant Sweet Construction Corp. (Sweet) for summary judgment dismissing the complaint as against it, and denied plaintiffs’ cross motion for leave to amend the complaint, unanimously reversed, on the law and the facts, without costs, Sweet’s motion denied and plaintiffs’ cross motion granted.

Sweet moved for summary judgment on the ground that it had no involvement in any activities at 200 Park Avenue South, the accident location alleged in the original complaint. In response, plaintiffs cross-moved to amend the complaint to allege the correct accident location, 201 Park Avenue South. Sweet, which does not deny that it performed work at 201 Park Avenue South, has not demonstrated either that it is entitled to judgment as a matter of law or that it will suffer any prejudice as a result of the proposed pleading amendment. Under these circumstances, Sweet should have been denied summary judgment, and plaintiffs should have been granted leave to amend the complaint (see CPLR 3025 [b]; Masterwear Corp. v Bernard, 3 AD3d 305, 306 [2004]). Concur—Buckley, P.J., Mazzarelli, Friedman, Marlow and Ellerin, JJ.