Oak Point Industrial Park v. Massachusetts Bay Insurance

65 A.D.2d 552, 408 N.Y.S.2d 958, 1978 N.Y. App. Div. LEXIS 13180

Opinion

In an action on an insurance policy, defendant Massachusetts Bay Insurance Company appeals from an order of the Supreme Court, Queens County, dated June 15, 1978, which denied its motion to amend its answer to assert an affirmative defense of fraud and misrepresentation. Order reversed, without costs or disbursements, and motion granted, on condition that appellant’s attorney pay plaintiff $750 within 20 days after entry of the order to be made hereon; in the event such condition is not complied with, then order affirmed, with $50 costs and disbursements. Appellant’s time to serve an amended answer is extended until 14 days after compliance by its attorney with the above-mentioned condition. Plaintiff is granted leave to conduct further pretrial discovery, which shall proceed as expeditiously as possible. Leave to amend an answer to plead a potentially meritorious defense should be freely given in the absence of prejudice. Here, no serious prejudice has been demonstrated by plaintiff sufficient to defeat the motion (see Dransñeld v Eastern Seaboard Warehouse Corp., 43 AD2d 569). The necessity of a motion to amend, however, was caused by an inexcusably inadequate preparation of the defense until the eve of trial, and appropriate conditions for allowing the amendment have therefore been imposed. Hopkins, J. P., Martuscello, Rabin and Margett, JJ., concur.