Sentry Insurance v. Kero-Sun, Inc.

Appellate Division of the Supreme Court of New York

Sentry Insurance v. Kero-Sun, Inc.

122 A.D.2d 204, 504 N.Y.S.2d 739, 1986 N.Y. App. Div. LEXIS 59534

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

DecidedJuly 21, 1986

StatusPublished

Cited by18 cases

This text of 122 A.D.2d 204 (Sentry Insurance v. Kero-Sun, Inc.) 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

Sentry Insurance v. Kero-Sun, Inc., 122 A.D.2d 204, 504 N.Y.S.2d 739, 1986 N.Y. App. Div. LEXIS 59534 (N.Y. Ct. App. 1986).

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Opinion

— In a subrogation action brought by the plaintiff Sentry Insurance Company against the defendant Kero-Sun, Inc., and Ovation Comfort Sales Company, the plaintiff appeals from an order of the Supreme Court, Rockland County (Marbach, J.), dated April 30, 1985, which granted the defendants and the third-party defendant Toyotomi Kogyo Co., Ltd., leave to amend their respective answers, the former as to the plaintiff and the latter as to the defendant and third-party plaintiff Ovation Comfort Sales.

Order affirmed, with costs to third-party defendant-repondent.

As a general rule, leave to amend should be freely given absent prejudice or surprise resulting directly from the delay (CPLR 3025 [b]; McCaskey, Davies & Assoc. v New York City Health & Hosps. Corp., 59 NY2d 755; Scheff v St. John’s [205]*205Episcopal Hosp., 115 AD2d 532). The plaintiff does not claim either prejudice or surprise, but argues that the motion should have been denied on the ground that the proposed affirmative defenses have no merit. The established rule, however, is that the legal sufficiency or merits of proposed amendments will not be examined on a motion to amend unless the insufficiency or lack of merit is clear and free from doubt (see, Norman v Ferrara, 107 AD2d 739; Goldstein v Brogan Cadillac Oldsmobile Corp., 90 AD2d 512). That is not the case here. Niehoff, J. P., Rubin, Eiber and Kooper, JJ., concur.

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— In a subrogation action brought by the plaintiff Sentry Insurance Company against the defendant Kero-Sun, Inc., and Ovation Comfort Sales Company, the plaintiff appeals from an order of the Supreme Court, Rockland County (Marbach, J.), dated April 30, 1985, which granted the defendants and the third-party defendant Toyotomi Kogyo Co., Ltd., leave to amend their respective answers, the former as to the plaintiff and the latter as to the defendant and third-party plaintiff Ovation Comfort Sales.

Order affirmed, with costs to third-party defendant-repondent.

As a general rule, leave to amend should be freely given absent prejudice or surprise resulting directly from the delay (CPLR 3025 [b]; McCaskey, Davies & Assoc. v New York City Health & Hosps. Corp., 59 NY2d 755; Scheff v St. John’s [205]*205Episcopal Hosp., 115 AD2d 532). The plaintiff does not claim either prejudice or surprise, but argues that the motion should have been denied on the ground that the proposed affirmative defenses have no merit. The established rule, however, is that the legal sufficiency or merits of proposed amendments will not be examined on a motion to amend unless the insufficiency or lack of merit is clear and free from doubt (see, Norman v Ferrara, 107 AD2d 739; Goldstein v Brogan Cadillac Oldsmobile Corp., 90 AD2d 512). That is not the case here. Niehoff, J. P., Rubin, Eiber and Kooper, JJ., concur.

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Bluebook (online)

122 A.D.2d 204, 504 N.Y.S.2d 739, 1986 N.Y. App. Div. LEXIS 59534, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sentry-insurance-v-kero-sun-inc-nyappdiv-1986.

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