Yerdon v. Baldwinsville Academy

39 A.D.2d 824, 333 N.Y.S.2d 101, 1972 N.Y. App. Div. LEXIS 4497

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 25, 1972
• Status: Published

Opinion

Order insofar as appealed from unanimously reversed, with costs, and motion granted. Memorandum: Leave to serve amended bills of particulars and complaints “ in the absence of a showing of prejudice should be freely granted ” (Kerlin v. Green, 36 A D 2d 892). The amendments here sought are not the addition of a new and different cause of action which would prejudice the defendants and the mere lapse of time without more is not sufficient ground for denial of the motion for leave to amend (see Matter of McNally v. Mosbacher, 36 A D 2d 522; Smith v. University of Rochester Med. Center, 32 A D 2d 736). The notice of claim was broad enough to allow a recovery based upon a negligent nonuse of gym mats. Although the court’s power to grant amendments to notices of claim (General Municipal Law, § 50-e, subd. 6) may not be as broad as its power to grant amendments to pleadings (CPLR 3025, subd. [b]), the motion to amend merely sought to allege more specifically an act of negligence and should have been allowed (see Matter of Powell v. Town of Gates, 36 A D 2d 220). (Appeal from parts of order of Onondaga Special Term denying motion to amend complaint and for other relief.) Present — Del Vecchio, J. P., Marsh, Moule, Cardamone and Henry, JJ.