You are here: / / Late Motion to Amend Answer Should Have Been Granted, No Prejudice

Late Motion to Amend Answer Should Have Been Granted, No Prejudice

The Second Department determined Supreme Court should have granted plaintiff’s motion to amend the answer by adding an affirmative defense. The court noted that, absent prejudice, mere lateness is not a sufficient ground for denial of the motion:

Permission to amend a pleading should be “freely given” (CPLR 3025[b]…). Leave to amend an answer to assert an affirmative defense should generally be granted where the proposed amendment is neither palpably insufficient nor patently devoid of merit, and there is no evidence that it would prejudice or surprise the opposing party … . Here, the defendant sufficiently alleged that the driver of his vehicle did not have his permission or consent to operate his vehicle at the time of the subject accident … . The proposed affirmative defense set forth allegations based on factual matters that are not palpably insufficient or patently devoid of merit … .

Furthermore, mere lateness is not a basis for denying an amendment unless the lateness is coupled with ” significant prejudice to the other side'” … . Although the defendant waited over 1 ½ years before moving for leave to amend the answer, there was no showing that the plaintiff would be significantly prejudiced, as discovery was ongoing … . Jeboda v Danza, 2015 NY Slip Op 07951, 2nd Dept 11-4-15

 

You might also like
INSUFFICIENT INQUIRY INTO SEX OFFENDER’S REQUEST TO REPRESENT HIMSELF.
DEFENDANTS’ CAR WAS STOPPED IN THE SHOULDER LANE FOR A NON-EMERGENCY REASON WHEN THE CAR IN WHICH PLAINTIFF WAS A PASSENGER STRUCK IT FROM BEHIND; THERE WERE QUESTIONS OF FACT WHETHER STOPPING THE CAR IN THE SHOULDER LANE FOR A NON-EMERGENCY REASON WAS A PROXIMATE CAUSE OF THE ACCIDENT (AS OPPOSED TO MERELY FURNISHING THE OCCASION FOR THE ACCIDENT?) (SECOND DEPT).
ALTHOUGH THE SCHOOL DISTRICT HAD TIMELY KNOWLEDGE OF THE INCIDENT AND THE PETITIONER’S INJURIES, IT DID NOT HAVE TIMELY KNOWLEDGE OF THE FACTS THAT UNDERLIE THE LEGAL THEORIES OF LIABILITY; THEREFORE THE PETITION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).
PLAINTIFF ASSUMED THE RISK OF PARTICIPATING IN AN OBSTACLE COURSE RACE; PLAINTIFF FELL ATTEMPTING A ‘MONSTER CLIMB’ WHICH HAD BEEN ERECTED ON A ROADWAY WITH NO MATS BENEATH (SECOND DEPT).
A MOTION TO MODIFY THE CUSTODY PROVISIONS IN A SETTLEMENT AGREEMENT, WHERE THERE ARE CONTESTED FACTS, SHOULD NOT BE GRANTED WITHOUT A FULL HEARING (SECOND DEPT). ​
THE PLAINTIFF IN THIS FORECLOSURE ACTION DID NOT DEMONSTRATE THE INTEREST CALCULATION WAS DONE USING THE METHOD REQUIRED BY THE NOTE AND THE RELEVANT BUSINESS RECORDS WERE NOT SUBMITTED; THE REFEREE’S REPORT SHOULD NOT HAVE BEEN CONFIRMED (SECOND DEPT).
PLAINTIFF FELL INTO A THREE-FEET-DEEP HOLE, QUESTION OF FACT WHETHER THE HOLE WAS AN OPEN AND OBVIOUS CONDITION, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT
DEFENDANT NYC HOUSING AUTHORITY (NYCHA) UNILATERALLY ADJOURNED THE 5O-H HEARING IN THIS SLIP AND FALL CASE AND ALLEGEDLY SENT A FOLLOW-UP LETTER TO PLAINTIFF; PLAINTIFF DENIED RECEIPT OF THE LETTER AND DEFENDANT IMPROPERLY SUBMITTED AN AFFIDAVIT OF SERVICE IN REPLY; THE AFFIDAVIT WAS NOT CONSIDERED; IN ADDITION, THE AFFIDAVIT DID NOT PROVE THE LETTER WAS MAILED TO PLAINTIFF (SECOND DEPT). ​

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

Attorney Whose Testimony Would Support Client Should Have Been Disqualified... Defendant Who Was Not Served Because Current Address Not on File with Secretary...