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Herrick v. Second Cuthouse, Ltd.

474 N.E.2d 1186, 64 N.Y.2d 692, 485 N.Y.S.2d 518, 1984 N.Y. LEXIS 4856
CourtNew York Court of Appeals
DecidedDecember 13, 1984
StatusPublished
Cited by34 cases

This text of 474 N.E.2d 1186 (Herrick v. Second Cuthouse, Ltd.) is published on Counsel Stack Legal Research, covering New York Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Herrick v. Second Cuthouse, Ltd., 474 N.E.2d 1186, 64 N.Y.2d 692, 485 N.Y.S.2d 518, 1984 N.Y. LEXIS 4856 (N.Y. 1984).

Opinion

OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, with costs.

Exercising their discretion, the courts below granted defendant’s motion to amend its answer to include the defenses of setoff and apportionment. The Appellate Division granted leave to appeal to this court and certified the following question: “Was the order of this court, dated April 30,1984 properly made?” We cannot say that the proposed defenses plainly lacked merit or that a showing of prejudice to plaintiff in allowing the amendment had been made (see Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, C3025:6, p 477; C3025:ll, p 481). Accordingly, there was no abuse of discretion as a matter of law in permitting amendment of the answer. In the absence of such abuse, this court has no power to review the grant of the discretionary remedy. Hence, the only remaining issue presented by the question certified is whether the Appellate Division had the power to grant the requested relief (Brady v Ottaway Newspapers, 63 NY2d 1031). We conclude that it had this power, and pass on no other issue.

Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Meyer, Simons and Kaye concur.

[694]*694Order affirmed, with costs, and question certified answered in the affirmative in a memorandum.

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474 N.E.2d 1186, 64 N.Y.2d 692, 485 N.Y.S.2d 518, 1984 N.Y. LEXIS 4856, Counsel Stack Legal Research, https://law.counselstack.com/opinion/herrick-v-second-cuthouse-ltd-ny-1984.