Lish v. Lish

73 A.D.2d 611, 422 N.Y.S.2d 890, 1979 N.Y. App. Div. LEXIS 14413

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 10, 1979
• Status: Published

Opinion

— In a matrimonial action, defendant appeals from an order of the Supreme Court, Nassau County, entered May 4, 1979, which denied his motion for leave to amend his bill of particulars and granted plaintiff’s motion for summary judgment dismissing his counterclaim for a constructive trust. Order reversed, without costs or disbursements, plaintiffs motion for summary judgment denied and defendant’s motion for leave to amend his bill of particulars granted, on condition that defendant’s attorney pay the sum of $250 to plaintiff within 20 days after service upon him of a copy of the order to be made hereon, together with notice of entry thereof; in the event that such condition is not complied with, then order affirmed with $50 costs and disbursements. Special Term improvidently exercised its discretion in denying defendant’s motion for leave to amend his bill of particulars. There was no showing that the plaintiff would be prejudiced as a result of the defendant’s proposed amendment, which asserted the same cause of action and theory of liability as the defendant’s original bill of particulars. However, in granting defendant’s motion to amend in the interest of justice, this court does not countenance his counsel’s delay in so moving, and, for that reason, we have directed him to pay plaintiff $250. Upon amendment of defendant’s bill of particulars, issues of fact are presented which require a trial. Therefore, Special Term’s granting of plaintiffs motion for summary judgment dismissing defendant’s counterclaim for a constructive trust must be reversed. Hopkins, J. P., Damiani, Titone and Mangano, JJ., concur.