Harrigan v. St. Hilaire

75 A.D.2d 698, 427 N.Y.S.2d 86, 1980 N.Y. App. Div. LEXIS 11167

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 24, 1980
• Status: Published

Opinion

Appeal from an order of the Supreme Court at a Trial Term, entered August 23, 1979 in Clinton County, which granted a motion for permission to serve an amended answer. This is a libel action which was commenced in May, 1976 and an answer was served in June, 1976. The case had been placed on the Trial Calendar when, in May, 1979, defendant moved to amend his answer to include the affirmative defenses of truth, executive privilege, qualified privilege, absolute privilege and peace officer’s privilege. Defendant’s motion was granted and this appeal ensued. Defendant maintains that the affirmative defense of truth was inadvertently omitted from the original answer. Defendant also avers that the remaining affirmative defenses sought to be added are based on information obtained shortly before the May, 1979 Supreme Court term as a result of a subpoena issued in September, 1978. The granting of the motion is within the sound discretion of the court and absent a showing of prejudice leave to amend should be freely granted (Albany Crane Serv. v Pettibone Mulliken Corp., 54 AD2d 794). In the present case, the delay alone did not constitute prejudice (see Russell v City of Troy, 72 AD2d 660). In our view, plaintiffs have failed to demonstrate any prejudice. Upon consideration of the entire record, it is the opinion of this court that there was no abuse of discretion in granting the motion and, therefore, the order should be affirmed. Order affirmed, without costs. Mahoney, P. J., Greenblott, Sweeney, Kane and Staley, Jr., JJ., concur.