Vickers v. Vickers

Appellate Division of the Supreme Court of New York

Vickers v. Vickers

131 A.D.2d 565, 516 N.Y.S.2d 490, 1987 N.Y. App. Div. LEXIS 48019

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

DecidedJune 8, 1987

StatusPublished

Cited by4 cases

This text of 131 A.D.2d 565 (Vickers v. Vickers) 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

Vickers v. Vickers, 131 A.D.2d 565, 516 N.Y.S.2d 490, 1987 N.Y. App. Div. LEXIS 48019 (N.Y. Ct. App. 1987).

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Opinion

In an action for a divorce and ancillary relief, the defendant wife appeals from an order of the Supreme Court, Suffolk County (Willen, J.), entered October 1, 1986, which granted the plaintiff husband’s motion for leave to serve a second amended complaint.

Ordered that the order is affirmed, with costs, the proposed second amended complaint is deemed served, and the defendant’s time to serve an answer thereto is extended until 20 days after service upon her of a copy of this decision and order, with notice of entry.

Contrary to the defendant’s contentions, it was not improper for the Supreme Court, Suffolk County, to consider the plaintiff’s motion (see, CPLR 2219, 2221; 22 NYCRR 202.3 [b]; cf., Dalrymple v Martin Luther King Community Health Center, 127 AD2d 69).

Further, as noted by this court, "[ljeave to amend may be sought 'at any time’ and 'shall be freely given’ absent prejudice or surprise resulting directly from the delay (CPLR 3025, subd [bj; see Fahey v County of Ontario, 44 NY2d 934; 3 Weinstein-Korn-Miller, NY Civ Prac, pars 3025.14, 3025.16)” (Kitchner v Kitchner, 100 AD2d 954-955). The record does not indicate that the defendant was surprised or prejudiced by the plaintiff’s motion to serve a second amended complaint (see, Kitchner v Kitchner, supra; see also, Barnes v County of Nassau, 108 AD2d 50, 52).

Accordingly, under the circumstances, it cannot be said that the Supreme Court abused its discretion by granting the plaintiffs motion. Thompson, J. P., Lawrence, Rubin, Kunzeman and Sullivan, JJ., concur.

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In an action for a divorce and ancillary relief, the defendant wife appeals from an order of the Supreme Court, Suffolk County (Willen, J.), entered October 1, 1986, which granted the plaintiff husband’s motion for leave to serve a second amended complaint.

Ordered that the order is affirmed, with costs, the proposed second amended complaint is deemed served, and the defendant’s time to serve an answer thereto is extended until 20 days after service upon her of a copy of this decision and order, with notice of entry.

Contrary to the defendant’s contentions, it was not improper for the Supreme Court, Suffolk County, to consider the plaintiff’s motion (see, CPLR 2219, 2221; 22 NYCRR 202.3 [b]; cf., Dalrymple v Martin Luther King Community Health Center, 127 AD2d 69).

Further, as noted by this court, "[ljeave to amend may be sought 'at any time’ and 'shall be freely given’ absent prejudice or surprise resulting directly from the delay (CPLR 3025, subd [bj; see Fahey v County of Ontario, 44 NY2d 934; 3 Weinstein-Korn-Miller, NY Civ Prac, pars 3025.14, 3025.16)” (Kitchner v Kitchner, 100 AD2d 954-955). The record does not indicate that the defendant was surprised or prejudiced by the plaintiff’s motion to serve a second amended complaint (see, Kitchner v Kitchner, supra; see also, Barnes v County of Nassau, 108 AD2d 50, 52).

Accordingly, under the circumstances, it cannot be said that the Supreme Court abused its discretion by granting the plaintiffs motion. Thompson, J. P., Lawrence, Rubin, Kunzeman and Sullivan, JJ., concur.

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Bluebook (online)

131 A.D.2d 565, 516 N.Y.S.2d 490, 1987 N.Y. App. Div. LEXIS 48019, Counsel Stack Legal Research, https://law.counselstack.com/opinion/vickers-v-vickers-nyappdiv-1987.

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