Wander Iron Works, Inc. v. Methodist Hospital

36 Misc. 2d 371, 232 N.Y.S.2d 748, 1962 N.Y. Misc. LEXIS 2458

Opinion

Louis B. Heller, J.

Motion by defendants Methodist Hospital and Maryland Casualty to amend their answers by pleading a partial defense of release as appears in the notice to amend.

On a previous application for the same relief, Mr. Justice Acquavella denied the motion ‘1 without prejudice to renewal upon proper papers ”. The court is satisfied that the prior deficiency has been overcome. The papers show that the subject of “ release ” came to light in a subsequent action (still undetermined) by a subcontractor wherein movants and this plaintiff were named parties defendant and it is alleged, without denial, in such action, plaintiff here, cross-claimed against the defendant hospital. Thus it is evident that plaintiff had knowledge of the said defense for almost nine months. Hnder the circumstances here described plaintiff will not be unduly prejudiced in allowing the amended pleading at this time. (Palmieri v. Standard Ins. Co., 5 A D 2d 684.)

Such amendments are granted with liberality so that a defendant may have the opportunity to raise all questions affecting his interest in the subject matter of the litigation. As a rule they are granted as a matter of course unless prejudice is shown. (Doyle v. Chatham & Phenix Nat. Bank, 219 App. Div. 522.)

Accordingly, the motion is granted. Defendants are given leave to amend their answer as proposed in the “Notice to Amend ” annexed to the moving papers. The amended answer to be served on the plaintiff within three days following publication of this determination.