Leonard v. Walter Davenport & Sons, Inc.

41 A.D.2d 526, 340 N.Y.S.2d 34, 1973 N.Y. App. Div. LEXIS 5247

Opinion

Order, Supreme Court, Bronx County, entered on March 29, 1972, unanimously reversed, on the law and in the exercise of discretion, and appellant’s motion to amend its answer is granted, without costs and without disbursements, on condition that appellant pay the sum of $250 in costs, within 20 days of service upon it by respondents of a copy of the order entered hereon, and serves its amended answer within that same period. This action was commenced September 29, 1969, and issue joined February 6, 1970. AppeEant asserts that it only learned of the availability of the Statute of Limitations as a possible defense in or about May, 1970. Appellant states no valid reason for the delay in moving to amend its answer and for that reason additional costs are imposed. Moreover, it is the policy of the law that leave to amend shall be freely granted upon such terms as may be just (CPLR 3025, subd. [b]). The amended complaint merely alleged that the causes of action accrued prior to August 17, 1968. In that posture of the pleadings and the causes of action set forth, no prejudice to plaintiffs is shown for if the proposed amendment has validity, there are no measures which plaintiffs could have taken to avoid its effect. Concur — Stevens, P. J., McGivern, Markewich, Murphy and Tilzer, JJ.