Leslie v. Hymes

60 A.D.2d 564, 400 N.Y.S.2d 350, 1977 N.Y. App. Div. LEXIS 14494

Opinion

Order of the Supreme Court, Bronx County, entered May 11, 1977, which denied defendant’s motion to amend his answer, is unanimously reversed, on the law and in the exercise of discretion, and the motion is granted, without costs and without disbursements. In this action for alleged malpractice and fraudulent breach of contract stemming from a surgical procedure performed on plaintiff Jerry Leslie in July, 1969, defendant alleging "inadvertence and oversight” moved in December, 1976 to amend his answer to affirmatively plead the Statute of Limitations. The motion was denied by order of January 7, 1977, without prejudice to renewal upon a showing by defendant of the date of service of summons and complaint and a justifiable excuse for delay in so moving. Although defendant’s motion papers filed in January, 1977 upon the renewal motion failed to set forth the information as to service required by the previous order or a justifiable excuse other than "oversight”, nevertheless, it was an improvident exercise of discretion to deny the application. The policy of the courts of this State is to "freely” grant leave to amend a pleading "at any time” (CPLR 3025, subd [b]; Albany Crane Serv. v Pettibone Mulliken Corp., 54 AD2d 794) in the absence of a showing of prejudice. The burden is upon the party opposing the motion to show prejudice (Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR 3025, pp 476-478). While the delay in moving was lengthy, the litigation was still in the pretrial stage. Plaintiffs have failed to sustain their burden of demonstrating prejudice. Concur—Birns, J. P., Silverman, Evans and Markewich, JJ.