Twitchell v. Town of Pittsford

78 A.D.2d 586, 432 N.Y.S.2d 425, 1980 N.Y. App. Div. LEXIS 12982

Opinion

Order unanimously affirmed, with costs. Memorandum: CPLR 3025 (subd [b]) permits amendment of pleadings at any time by leave of court and directs that leave be freely given. It is well settled that the statute should be liberally construed and amendment should be granted absent laches, undue prejudice or unfair advantage. Liberality does not, however, require courts to permit futile amendments (Citibank [N. Y. State], N. A. v Suthers, 68 AD2d 790). On this appeal the third-party plaintiff asserts such futility but at Special Term it submitted no pleading in opposition to the motion to amend made by the third-party defendant. Thus the futility issue is not before us on this appeal. The third-party defendant’s motion under CPLR 3025 (subd [b]) to amend its answer by asserting certain agreements between the parties was proper and Special Term did not abuse its discretion in granting the motion. (Appeal from order of Monroe Supreme Court—amend complaint.) Present—Dillon, P. J., Schnepp, Callahan, Doerr and Witmer, JJ.