Opinion
No. 289 CA 21-01448
07-01-2022
AMANDA WELDON, PLAINTIFF-RESPONDENT, v. DANA N. MCMAHON, DEFENDANT-APPELLANT, ET AL., DEFENDANT.
LAW OFFICE OF KEITH D. MILLER, LIVERPOOL (KEITH D. MILLER OF COUNSEL), FOR DEFENDANT-APPELLANT. STANLEY LAW OFFICES, SYRACUSE (JAMIE M. RICHARDS OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
LAW OFFICE OF KEITH D. MILLER, LIVERPOOL (KEITH D. MILLER OF COUNSEL), FOR DEFENDANT-APPELLANT.
STANLEY LAW OFFICES, SYRACUSE (JAMIE M. RICHARDS OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
PRESENT: WHALEN, P.J., SMITH, CENTRA, NEMOYER, AND WINSLOW, JJ.
Appeal from an order of the Supreme Court, Onondaga County (Deborah H. Karalunas, J.), entered April 14, 2021. The order denied the motion of defendant Dana N. McMahon for leave to file an amended answer.
It is hereby ORDERED that the order so appealed from is unanimously reversed on the law without costs, and the motion is granted.
Memorandum: Plaintiff commenced this action seeking damages for injuries she allegedly sustained when her vehicle was struck by a vehicle owned by Dana N. McMahon (defendant) and operated by Alison L. Argy. Defendant appeals from an order that denied his motion for leave to amend his answer.
We agree with defendant that Supreme Court abused its discretion in denying his motion. "Generally, [l]eave to amend a pleading should be freely granted in the absence of prejudice to the nonmoving party where the amendment is not patently lacking in merit..., and the decision whether to grant leave to amend a [pleading] is committed to the sound discretion of the court" (Palaszynski v Mattice, 78 A.D.3d 1528, 1528 [4th Dept 2010] [internal quotation marks omitted]; see Edenwald Contr. Co. v City of New York, 60 N.Y.2d 957, 959 [1983]).
" 'Prejudice may be found where a party has incurred some change in position or hindrance in the preparation of its case which could have been avoided had the original pleading contained the proposed amendment'" (Burke, Albright, Harter & Rzepka LLP v Sills, 187 A.D.3d 1507, 1509 [4th Dept 2020], quoting Whalen v Kawasaki Motors Corp., U.S.A., 92 N.Y.2d 288, 293 [1998]). The nonmoving party bears the burden of establishing prejudice (see Kimso Apts., LLC v Gandhi, 24 N.Y.3d 403, 411 [2014]; Wojtalewski v Central Sq. Cent. Sch. Dist., 161 A.D.3d 1560, 1561 [4th Dept 2018]).
Here, plaintiff failed to identify any prejudice arising from the proposed amendment (see Greco v Grande, 160 A.D.3d 1345, 1346 [4th Dept 2018]; Williams v New York Cent. Mut. Fire Ins. Co. [appeal No. 2], 108 A.D.3d 1112, 1114 [4th Dept 2013]; Bryndle v Safety-Kleen Sys., Inc., 66 A.D.3d 1396, 1396 [4th Dept 2009]), and the evidence submitted by defendant in support of his motion established that the proposed amendment is not patently without merit (see Bryndle, 66 A.D.3d at 1396; see also Great Lakes Motor Corp. v Johnson, 156 A.D.3d 1369, 1371 [4th Dept 2017]; Holst v Liberatore, 105 A.D.3d 1374, 1374-1375 [4th Dept 2013]).