Opinion
February 22, 1977
In an action to recover damages for personal injuries predicated upon an assault, plaintiff appeals from an order of the Supreme Court, Westchester County, dated August 31, 1976, which denied, without prejudice to renewal, his motion for leave to serve an amended complaint. Order reversed, with $50 costs and disbursements payable by respondents Mobil Oil Corporation and Eastchester Auto Clinic, and motion granted. Plaintiff shall serve the amended complaint within 20 days after entry of the order to be made hereon. Under the circumstances of this case, plaintiff's attorney had greater knowledge of the facts which required an amended complaint than the plaintiff himself. Accordingly, the attorney's affirmation is proper in lieu of the party's affidavit of merits. In light of this State's liberal policy toward amendment of pleadings (Mitchell v City of New York, 44 A.D.2d 852), Special Term should have granted plaintiff's motion since there was no showing of prejudice. The original complaint seeks recovery for an intentional tort; the proposed amendment merely adds a negligence theory based upon the same incident. Rabin, Acting P.J., Shapiro, Titone and O'Connor, JJ., concur.