Serratore v. Vetere

Appellate Division of the Supreme Court of New York

Serratore v. Vetere

137 A.D.2d 750, 524 N.Y.S.2d 829, 1988 N.Y. App. Div. LEXIS 1900

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

DecidedFebruary 22, 1988

StatusPublished

Cited by2 cases

This text of 137 A.D.2d 750 (Serratore v. Vetere) 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

Serratore v. Vetere, 137 A.D.2d 750, 524 N.Y.S.2d 829, 1988 N.Y. App. Div. LEXIS 1900 (N.Y. Ct. App. 1988).

Pincite

Opinion

In a negligence action to recover damages for personal injuries, etc., the third-party defendant E. J. Brachs and Sons appeals from so much of an order of the Supreme Court, Rockland County (Kelly, J.), dated July 1, 1987, as granted the third-party plaintiffs leave to serve a further amended third-party complaint.

Ordered that the order is affirmed insofar as appealed from, with costs, and the third-party plaintiffs’ time to serve a further amended third-party complaint is extended until 20 days after service upon them of a copy of this decision and order, with notice of entry.

The Supreme Court, Rockland County, dismissed the amended third-party complaint for legal insufficiency without prejudice to service of a further amended third-party complaint. The appellant contends that the amended third-party complaint should have been dismissed in its entirety with prejudice. We find that leave to replead was properly granted. The determination whether to allow an amendment to the pleadings rests within the sound discretion of the Supreme Court and the exercise of such discretion should not lightly be set aside (see, Edenwald Contr. Co. v City of New York, 60 NY2d 957). Absent prejudice or surprise to the nonmoving party, leave to amend pleadings should be freely given (CPLR 3025 [b]; Edenwald Contr. Co. v City of New York, supra; McCaskey, Davies & Assocs. v New York City Health & Hosps. Corp., 59 NY2d 755). At bar, we find no prejudice or surprise would accrue to the appellant as the circumstances of the incident in question, the parties involved and the theory of liability are clearly set forth in the pleadings in the main action and the first amended third-party complaint. The court, therefore, properly exercised its discretion in permitting the further amendment of the third-party complaint. Thompson, J. P., Bracken, Brown, Weinstein and Spatt, JJ., concur.

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In a negligence action to recover damages for personal injuries, etc., the third-party defendant E. J. Brachs and Sons appeals from so much of an order of the Supreme Court, Rockland County (Kelly, J.), dated July 1, 1987, as granted the third-party plaintiffs leave to serve a further amended third-party complaint.

Ordered that the order is affirmed insofar as appealed from, with costs, and the third-party plaintiffs’ time to serve a further amended third-party complaint is extended until 20 days after service upon them of a copy of this decision and order, with notice of entry.

The Supreme Court, Rockland County, dismissed the amended third-party complaint for legal insufficiency without prejudice to service of a further amended third-party complaint. The appellant contends that the amended third-party complaint should have been dismissed in its entirety with prejudice. We find that leave to replead was properly granted. The determination whether to allow an amendment to the pleadings rests within the sound discretion of the Supreme Court and the exercise of such discretion should not lightly be set aside (see, Edenwald Contr. Co. v City of New York, 60 NY2d 957). Absent prejudice or surprise to the nonmoving party, leave to amend pleadings should be freely given (CPLR 3025 [b]; Edenwald Contr. Co. v City of New York, supra; McCaskey, Davies & Assocs. v New York City Health & Hosps. Corp., 59 NY2d 755). At bar, we find no prejudice or surprise would accrue to the appellant as the circumstances of the incident in question, the parties involved and the theory of liability are clearly set forth in the pleadings in the main action and the first amended third-party complaint. The court, therefore, properly exercised its discretion in permitting the further amendment of the third-party complaint. Thompson, J. P., Bracken, Brown, Weinstein and Spatt, JJ., concur.

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Bluebook (online)

137 A.D.2d 750, 524 N.Y.S.2d 829, 1988 N.Y. App. Div. LEXIS 1900, Counsel Stack Legal Research, https://law.counselstack.com/opinion/serratore-v-vetere-nyappdiv-1988.

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