Opinion
2013-04-10
BIAGGI & BIAGGI, etc., appellant, v. 175 MEDICAL VISION PROPERTIES, LLC, et al., respondents.
Biaggi & Biaggi, New York, N.Y. (Mario Biaggi, Jr., and Richard M. Biaggi of counsel), appellant pro se. Koehler & Isaacs, LLP, New York, N.Y. (Raymond J. Aab of counsel), for respondents.
Biaggi & Biaggi, New York, N.Y. (Mario Biaggi, Jr., and Richard M. Biaggi of counsel), appellant pro se. Koehler & Isaacs, LLP, New York, N.Y. (Raymond J. Aab of counsel), for respondents.
In an action, inter alia, to recover damages for breach of contract, the plaintiff appeals from an order of the Supreme Court, Westchester County (Lefkowitz, J.), entered February 1, 2012, which granted the defendants' motion for leave to amend the answer to include five counterclaims.
ORDERED that the order is affirmed, with costs.
Leave to amend the pleadings “shall be freely given” absent prejudice or surprise resulting directly from the delay (CPLR 3025[b]; McCaskey, Davies & Assoc. v. New York City Health & Hosps. Corp., 59 N.Y.2d 755, 757, 463 N.Y.S.2d 434, 450 N.E.2d 240; Fahey v. County of Ontario, 44 N.Y.2d 934, 935, 408 N.Y.S.2d 314, 380 N.E.2d 146). “The granting of such leave is committed to the sound discretion of the trial court and must be determined on a case-by-case basis” ( Skinner v. Scobbo, 221 A.D.2d 334, 335, 633 N.Y.S.2d 208).
Inasmuch as the venue for this case had been changed from Westchester County to Kings County, the defendants moved the Supreme Court, Kings County, on or about February 19, 2010, for leave to amend their answer. After the venue of the case was transferred back to Westchester County, the defendants' motion was denied without prejudice to renew the same motion in Westchester County, which they accomplished in a timely fashion. Accordingly, the Supreme Court, Westchester County, properly granted the motion, since any delay in filing the motion in Westchester County was neither prejudicial nor so gross as to warrant denial of the motion on that basis ( see id. at 335, 633 N.Y.S.2d 208;Hickey v. Hutton, 182 A.D.2d 801, 802, 582 N.Y.S.2d 786).
The plaintiff's remaining contentions are without merit.