Paola v. Esposito

Appellate Division of the Supreme Court of New York

Paola v. Esposito

161 A.D.2d 1148, 555 N.Y.S.2d 509, 1990 N.Y. App. Div. LEXIS 9132

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

DecidedMay 11, 1990

StatusPublished

This text of 161 A.D.2d 1148 (Paola v. Esposito) 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.

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Paola v. Esposito, 161 A.D.2d 1148, 555 N.Y.S.2d 509, 1990 N.Y. App. Div. LEXIS 9132 (N.Y. Ct. App. 1990).

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Opinion

Order unanimously modified on the law and as modified affirmed without costs, in accordance with the following memorandum: Leave to amend pleadings "shall be freely given” absent prejudice or surprise resulting directly from the delay in moving to amend (CPLR 3025 [b]; McCaskey, Davies & Assocs. v New York City Health & Hosps. Corp., 59 NY2d 755, 757). Since the papers do not indicate that defendant can claim prejudice or surprise, it was an abuse of discretion for Supreme Court to deny plaintiff’s motion to amend her reply to assert the Statute of Limitations as an affirmative defense (see, McCaskey, Davies & Assocs. v New York City Health & [1149]*1149Hosps. Corp., supra; Parker v Soper, 159 AD2d 973). (Appeal from order of Supreme Court, Niagara County, Sedita, J.— amend reply.) Present—Dillon, P. J., Callahan, Denman, Balio and Davis, JJ.

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Order unanimously modified on the law and as modified affirmed without costs, in accordance with the following memorandum: Leave to amend pleadings "shall be freely given” absent prejudice or surprise resulting directly from the delay in moving to amend (CPLR 3025 [b]; McCaskey, Davies & Assocs. v New York City Health & Hosps. Corp., 59 NY2d 755, 757). Since the papers do not indicate that defendant can claim prejudice or surprise, it was an abuse of discretion for Supreme Court to deny plaintiff’s motion to amend her reply to assert the Statute of Limitations as an affirmative defense (see, McCaskey, Davies & Assocs. v New York City Health & [1149]*1149Hosps. Corp., supra; Parker v Soper, 159 AD2d 973). (Appeal from order of Supreme Court, Niagara County, Sedita, J.— amend reply.) Present—Dillon, P. J., Callahan, Denman, Balio and Davis, JJ.

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Bluebook (online)

161 A.D.2d 1148, 555 N.Y.S.2d 509, 1990 N.Y. App. Div. LEXIS 9132, Counsel Stack Legal Research, https://law.counselstack.com/opinion/paola-v-esposito-nyappdiv-1990.

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