White v. Royal Prudential Industries, Inc.

224 A.D.2d 682, 639 N.Y.S.2d 55, 1996 N.Y. App. Div. LEXIS 1918

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 26, 1996
• Status: Published

Opinion

—In a negligence action to recover damages for personal injuries, etc., the defendant Alexander’s, Inc., appeals from so much of an order of the Supreme Court, Nassau County (Schmidt, J.), dated December 6, 1994, as denied the branch of its motion pursuant to CPLR 3025 (b) which was for leave to serve an amended answer to include the second and third affirmative defenses relating to a discharge in bankruptcy and a stipulation modifying an automatic stay.

Ordered that the order is reversed insofar as appealed from, as a matter of discretion, with costs, the motion is granted, and the proposed amended answer with cross claim is deemed served.

Since the affirmative defenses sought to be included in the amended answer are meritorious and the plaintiffs failed to establish that they would suffer any prejudice or surprise if the appellant’s motion to serve an amended answer were granted, it was an improvident exercise of discretion to deny the motion (see, McCaskey, Davies & Assocs. v New York City Health & Hosps. Corp., 59 NY2d 755; Hickey v Hutton, 182 AD2d 801, 802). The court’s finding that the plaintiff would be prejudiced because the second and third affirmative defenses refer to insurance coverage is not the type of prejudice necessary to defeat the appellant’s motion (see generally, Edenwald Contr. Co. v City of New York, 60 NY2d 957; Siegel, NY Prac § 237, at 353 [2d ed]). Rosenblatt, J. P., Sullivan, Copertino, Santucci and Goldstein, JJ., concur.