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Avery v. Ellenville

Supreme Court, Special Term, Ulster County
Jun 19, 1958
11 Misc. 2d 976 (N.Y. Misc. 1958)

Opinion

June 19, 1958

Lawrence Levine for plaintiffs.

Louis Berger for Town of Warwarsing.

Arthur A. Davis, Jr., for County of Ulster.

James J. Murray for defendant.


The original motion is a motion by the plaintiffs for leave to file notices of claim against the County of Ulster and the Town of Wawarsing for injuries sustained by the above-mentioned infant plaintiff on April 30, 1955, and for leave to amend the complaint herein to add the names of the County of Ulster and the Town of Wawarsing as defendants and to serve a supplemental summons on the added defendants. The motion is denied ( Matter of Brown v. Board of Trustees of Hamptonburg School Dist., 303 N.Y. 484).

The defendant has cross-moved to amend its answer. As stated, the accident occurred on April 30, 1955. Timely notice of claim against the defendant village was served on July 25, 1955. The accident occurred on a bridge known as the Clinton Avenue bridge. The complaint alleged the defendant's control of the bridge and the duty of the defendant to keep the bridge in a safe and proper condition. In its answer served on January 21, 1956, the defendant admitted such control and such duty. The defendant now seeks more than two years later to amend its answer so as to deny any control or duty. The answer was submitted by the village attorney. No excuse is offered for failure to deny the plaintiff's allegations except that through a later investigation by the village attorney and from the defendant's own records it was ascertained that the defendant allegedly had no authority to maintain or control the bridge. The answer of the defendant cannot now be amended by withdrawing its admission and entering a denial to show that it is not responsible for the injuries suffered where the defendant has waited until the plaintiff has lost his right to proceed against other municipalities which may be responsible. Moreover, no reason is given for its omission to discover the alleged facts on which it now seeks to rely and for its waiting more than three years after the accident happened before moving to amend. The alleged facts that the defendant village now seeks to invoke should have been known to it at the time the original answer was served. The cross motion is denied ( Levy v. Delaware, Lackawanna Western R.R. Co., 211 App. Div. 503; Drescher v. Mirkus, 211 App. Div. 763; Jennings v. Perkins, 277 App. Div. 1143; Rosenfeld v. Parbrook Constr. Co., 280 App. Div. 944).

Submit order to Troy on three days' notice. The motion papers will be forwarded with the signed order.


Summaries of

Avery v. Ellenville

Supreme Court, Special Term, Ulster County
Jun 19, 1958
11 Misc. 2d 976 (N.Y. Misc. 1958)
Case details for

Avery v. Ellenville

Case Details

Full title:VIRGIL C. AVERY, an Infant, by ELMER AVERY, His Guardian ad Litem, et al.…

Court:Supreme Court, Special Term, Ulster County

Date published: Jun 19, 1958

Citations

11 Misc. 2d 976 (N.Y. Misc. 1958)
176 N.Y.S.2d 879

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