Win Properties, Inc. v. Feder's Auto Sales & Service, Inc.

245 A.D.2d 444, 666 N.Y.S.2d 470, 1997 N.Y. App. Div. LEXIS 13052

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 15, 1997
• Status: Published

Opinion

—In an action, inter alia, to recover rents due under a lease, the defendants Feder’s Auto Sales & Service, Inc. and Michael Feder appeal, as limited by their brief, from so much of a judgment of the Supreme Court, Orange County (Paño Z. Patsalos, J.), dated September 18, 1996, as is in favor of the plaintiffs and against them in the principal sum of $106,956.35.

Ordered that the judgment is affirmed insofar as appealed from, without costs or disbursements.

The court properly denied the appellants’ motion, made during trial, to amend their answer so as to assert the affirmative defense of constructive eviction, as their belated assertion of that defense was prejudicial to the plaintiffs (see, Loomis v Civetta Corinno Constr. Corp., 54 NY2d 18, 23).

The appellants’ remaining contentions are without merit. O’Brien, J. P., Joy, Friedmann and Goldstein, JJ., concur.