Verizon New York Inc. v. Consolidated Edison, Inc.

38 A.D.3d 391, 830 N.Y.S.2d 902

Opinion

Order, Supreme Court, New York County (Joan A. Madden, J.), entered August 25, 2006, which denied defendant’s motion to dismiss the complaint for failure to state a cause of action or for summary judgment, and granted plaintiffs cross motion to amend its complaint, unanimously affirmed, with costs.

This is an action for property damage allegedly attributed to defendant’s negligence. Defendant’s dismissal motion was based on an asserted conflict between facts set forth in the bill of particulars and in the complaint. The court resolved this conflict by granting plaintiff leave to amend its pleading. It is axiomatic that absent prejudice or surprise, such leave should be freely given (CPLR 3025 [b]), except where the proposed amendment plainly lacks merit and would serve no purpose than to needlessly complicate and/or delay discovery and trial (Berger v Water Commrs. of Town of Waterford, 296 AD2d 649 [2002]).

Defendant seeks dismissal of the complaint prior to discovery because it was inartfully drawn, a characterization with which we agree. Notwithstanding the above, not only is allowing such an amendment within the court’s discretion (id.), but there is no inherent contradiction between the complaint and plaintiffs bill of particulars, and defendant has not demonstrated any prejudice or surprise arising out of granting such an amendment. Concur—Tom, J.P., Andrias, Sullivan, Williams and Gonzalez, JJ.