Hospital for Joint Diseases Orthopaedic Institute v. James Katsikis Environmental Contractors, Inc.

173 A.D.2d 210

Opinion

Order, Supreme Court, New York County (Eugene L. Nardelli, J.), entered November 16, 1990, which granted plaintiffs motion to amend the complaint by adding a cause of action alleging the unlicensed practice of engineering, in violation of the Education Law, unanimously affirmed, with costs.

On a motion to amend pleadings (CPLR 3025 [b]), the court should examine, but need not decide, the merits of the proposed new pleading unless it is patently insufficient on its face (cf., Strook & Strook & Lavan v Beltramini, 157 AD2d 590; Goldberg v Linden Towers Coop. No. 5, 147 AD2d 672). Once a prima facie basis for the amendment has been established, that should end the inquiry, even in the face of a rebuttal that might provide the ground for a subsequent motion for summary judgment (Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C3025:ll).

Expert testimony brought to light during the deposition confirmed the existence of a prima facie cause of action. Defendants have failed to demonstrate prejudice attributable to any delay in making the motion. Accordingly, granting the motion was a proper exercise of the court’s discretion (Murray v City of New York, 43 NY2d 400). Concur—Carro, J. P., Milonas, Asch, Kassal and Rubin, JJ.