Souchu v. J. I. Hass Co.

Appellate Division of the Supreme Court of New York

Souchu v. J. I. Hass Co.

81 A.D.2d 884, 439 N.Y.S.2d 56, 1981 N.Y. App. Div. LEXIS 11586

Appellate Division of the Supreme Court of the State of New York·Decided May 18, 1981·Published·Cited by 4 cases

Opinion

— In a wrongful death action, plaintiff appeals from an order of the Supreme Court, Orange County, dated April 28, 1980, which granted defendant A. J. Parrella Blacktopping, Inc.’s motion to serve an amended answer. Order reversed, on the law, with $50 costs and disbursements, and motion denied. The granting of defendant A. J. Parrella Blacktopping, Inc.’s motion to amend its answer to withdraw the admission that it had provided the allegedly defective pavement roller to decedent’s employer was prejudicial. The motion was made after the wrongful death Statute of Limitations expired, preventing the plaintiff from instituting an action against the actual owner and provider of the vehicle (see Drescher v Mirkus, 211 App Div 763). Plaintiff had no reason to believe that the admission was erroneous. The granting of the motion would leave plaintiff without remedy (see Kennedy v Calta, 70 AD2d 930) and, therefore, it should be denied. Mangano, J. P., Rabin, Margett and Weinstein, JJ., concur.

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— In a wrongful death action, plaintiff appeals from an order of the Supreme Court, Orange County, dated April 28, 1980, which granted defendant A. J. Parrella Blacktopping, Inc.’s motion to serve an amended answer. Order reversed, on the law, with $50 costs and disbursements, and motion denied. The granting of defendant A. J. Parrella Blacktopping, Inc.’s motion to amend its answer to withdraw the admission that it had provided the allegedly defective pavement roller to decedent’s employer was prejudicial. The motion was made after the wrongful death Statute of Limitations expired, preventing the plaintiff from instituting an action against the actual owner and provider of the vehicle (see Drescher v Mirkus, 211 App Div 763). Plaintiff had no reason to believe that the admission was erroneous. The granting of the motion would leave plaintiff without remedy (see Kennedy v Calta, 70 AD2d 930) and, therefore, it should be denied. Mangano, J. P., Rabin, Margett and Weinstein, JJ., concur.

Souchu v. J. I. Hass Co., 81 A.D.2d 884, 439 N.Y.S.2d 56, 1981 N.Y. App. Div. LEXIS 11586 (N.Y. Ct. App. 1981).

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