Opinion
March 1, 1979
Order, Supreme Court, New York County, entered October 2, 1978, to the extent appealed from, unanimously affirmed, without costs or disbursements, with leave to defendant to serve an amended answer asserting the defense of release. Any such answer is to be served within 20 days of service upon defendant of a copy of the order entered hereon with notice of entry. There is here involved an issue of credibility which we are not able to determine on the papers submitted on this motion for summary judgment. Nonetheless, defendant's presentation is sufficient to warrant the grant of leave to amend to allege the defense of release, the defense which defeated plaintiff's motion. (See Cushman Wakefield v. John David, Inc., 25 A.D.2d 133, 135.)
Concur — Kupferman, J.P., Evans, Fein, Markewich and Bloom, JJ.