Opinion
No. 16088 Index Nos. 157034/18 595236/20 Case No. 2022-00690
06-07-2022
Board of Managers of the Porter House Condominium, Plaintiff-Respondent, v. Delshah 60 Ninth LLC, Defendant-Appellant. [And a Third-Party Action.]
Woods Oviatt Gilman LLP, Buffalo (William F. Savino of counsel), for appellant. Schwartz Sladkus Reich Greenberg Atlas, LLP, New York (Allyson P. Stavis of counsel), for respondent.
Woods Oviatt Gilman LLP, Buffalo (William F. Savino of counsel), for appellant.
Schwartz Sladkus Reich Greenberg Atlas, LLP, New York (Allyson P. Stavis of counsel), for respondent.
Before: Renwick, J.P., Oing, Moulton, Kennedy, Mendez, JJ.
Order, Supreme Court, New York County (Arlene Bluth, J.), entered February 10, 2022, which denied defendant Delshah 60 Ninth LLC's motion to amend its answer to add additional affirmative defenses, unanimously reversed, on the law, without costs, and the motion granted.
The court should have granted defendant's motion to amend its answer to add the four affirmative defenses of RPAPL 1951, adverse possession, mutual breach, and unclean hands, as leave to amend is freely given and plaintiff did not show that it would be prejudiced by the delay in asserting the defenses (CPLR 3025[b]; Edenwald Contr. Co. v City of New York, 60 N.Y.2d 957, 959 [1983]; Fahey v County of Ontario, 44 N.Y.2d 934 [1978]). While over two years had passed since defendant served its original answer, discovery was still ongoing (see Seda v New York City Hous. Auth., 181 A.D.2d 469 [1st Dept 1992], lv denied 80 N.Y.2d 759 [1992]). Plaintiff's claim of significant prejudice is unpersuasive, as all it points to is mere delay, which is insufficient to show prejudice (see Spitzer v Schussel, 48 A.D.3d 233, 234 [1st Dept 2008]). Nor did plaintiff rebut defendant's showing that the proffered amendment is not palpably insufficient or clearly devoid of merit (see MBIA Ins. Corp. v Greystone & Co., Inc., 74 A.D.3d 499 [1st Dept 2010]).