Pogue v. Del Rosario

Appellate Division of the Supreme Court of New York

Pogue v. Del Rosario

266 A.D.2d 525, 698 N.Y.S.2d 898, 1999 N.Y. App. Div. LEXIS 12279

Appellate Division of the Supreme Court of the State of New York·Decided November 29, 1999·Published·Cited by 4 cases

Opinion

—In an action to recover dam[526] ages for medical malpractice, etc., the defendants appeal from an order of the Supreme Court, Suffolk County (Jones, J.), dated July 13, 1998, which denied their motion for leave to serve and file an amended answer asserting the affirmative defense of failure to mitigate damages.

Ordered that the order is affirmed, with costs.

The decision to grant or deny leave to amend a pleading is within the court’s discretion, and the exercise of such discretion will not be lightly disturbed (see, Sherman v Claire Mfg. Co., 239 AD2d 487). In this case the defendants did not seek leave to amend the answer in a timely manner, failed to proffer any reasonable excuse for the delay (see, Romeo v Arrigo, 254 AD2d 270), and did not proffer an adequate showing of merit (see, Bertan v Richmond Mem. Hosp. & Health Ctr., 106 AD2d 362). Accordingly, the denial of their motion was not an improvident exercise of discretion. Bracken, J. P., Friedmann, Goldstein and McGinity, JJ., concur.

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—In an action to recover dam[526] ages for medical malpractice, etc., the defendants appeal from an order of the Supreme Court, Suffolk County (Jones, J.), dated July 13, 1998, which denied their motion for leave to serve and file an amended answer asserting the affirmative defense of failure to mitigate damages.

Ordered that the order is affirmed, with costs.

The decision to grant or deny leave to amend a pleading is within the court’s discretion, and the exercise of such discretion will not be lightly disturbed (see, Sherman v Claire Mfg. Co., 239 AD2d 487). In this case the defendants did not seek leave to amend the answer in a timely manner, failed to proffer any reasonable excuse for the delay (see, Romeo v Arrigo, 254 AD2d 270), and did not proffer an adequate showing of merit (see, Bertan v Richmond Mem. Hosp. & Health Ctr., 106 AD2d 362). Accordingly, the denial of their motion was not an improvident exercise of discretion. Bracken, J. P., Friedmann, Goldstein and McGinity, JJ., concur.

Pogue v. Del Rosario, 266 A.D.2d 525, 698 N.Y.S.2d 898, 1999 N.Y. App. Div. LEXIS 12279 (N.Y. Ct. App. 1999).

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