Palacio v. Palacio

Appellate Division of the Supreme Court of New York

Palacio v. Palacio

72 A.D.2d 742, 421 N.Y.S.2d 253, 1979 N.Y. App. Div. LEXIS 13959

CourtAppellate Division of the Supreme Court of the State of New York

DecidedNovember 5, 1979

StatusPublished

This text of 72 A.D.2d 742 (Palacio v. Palacio) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Palacio v. Palacio, 72 A.D.2d 742, 421 N.Y.S.2d 253, 1979 N.Y. App. Div. LEXIS 13959 (N.Y. Ct. App. 1979).

Pincite

Opinion

In a divorce action, defendant appeals from so much of an order of the Supreme Court, Nassau County, dated April 4, 1979, as denied his motion (1) for leave to serve an amended and supplemental answer alleging two counterclaims and (2) to compel plaintiff to submit to an examination before trial. Order modified by deleting therefrom the provision denying the branch of defendant’s motion which sought leave to serve an amended and supplemental answer and substituting therefor a provision granting said branch of the motion. As so modified, order affirmed insofar as appealed from, without costs or disbursements. In the proper exercise of its discretion, the court should have granted defendant’s application for leave to amend his answer based on newly discovered evidence to substantiate his claim of adultery. CPLR 3025 (subd [b]) mandates that leave to amend pleadings should be freely given absent prejudice. Under the circumstances, the four-month delay between the time the note of issue was filed and the time of defendant’s application for leave to amend his answer was not prejudicial to plaintiff. Hopkins, J. P., O’Connor, Lazer and Margett, JJ., concur.

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In a divorce action, defendant appeals from so much of an order of the Supreme Court, Nassau County, dated April 4, 1979, as denied his motion (1) for leave to serve an amended and supplemental answer alleging two counterclaims and (2) to compel plaintiff to submit to an examination before trial. Order modified by deleting therefrom the provision denying the branch of defendant’s motion which sought leave to serve an amended and supplemental answer and substituting therefor a provision granting said branch of the motion. As so modified, order affirmed insofar as appealed from, without costs or disbursements. In the proper exercise of its discretion, the court should have granted defendant’s application for leave to amend his answer based on newly discovered evidence to substantiate his claim of adultery. CPLR 3025 (subd [b]) mandates that leave to amend pleadings should be freely given absent prejudice. Under the circumstances, the four-month delay between the time the note of issue was filed and the time of defendant’s application for leave to amend his answer was not prejudicial to plaintiff. Hopkins, J. P., O’Connor, Lazer and Margett, JJ., concur.

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Bluebook (online)

72 A.D.2d 742, 421 N.Y.S.2d 253, 1979 N.Y. App. Div. LEXIS 13959, Counsel Stack Legal Research, https://law.counselstack.com/opinion/palacio-v-palacio-nyappdiv-1979.