James-Smith v. Rottenberg

32 A.D.2d 792, 302 N.Y.S.2d 355

Opinion

In an action (1) to recover damages for breach of a contract of sale of real property and (2) upon a check, plaintiff appeals from an order of th.e Supreme Court, Rockland County, dated October 31, 1968, which granted defendant’s motion for leave to serve an amended answer. Order reversed, on the law and the facts, with $10 costs and disbursements, and motion denied. Respondent’s answer, which was served on June 14, 1966, contained general denials. By notice of motion dated August 30, 1968 he moved to amend his answer by setting forth the affirmative defenses of fraud and illegality. At this time the case had reached the top of the Trial Calendar. Appellant’s case was prepared on the basis of an answer containing a general denial; she is old and in ill health and all the facts which might form the basis of the affirmative defenses occurred prior to the making of the contract and were or should have been known to respondent at least by the time the complaint was served. Although we are mindful of the liberal policy to be followed with respect to motions to amend (see OPLR 3025, subd. [b]), we are of the opinion that it was an improvident exercise of discretion, resulting in prejudice to appellant, to permit the amendment. Brennan, Acting P. J., Hopkins, Benjamin, Munder and Martuseello, JJ., concur.