Fitzpatrick v. Structure Tone, Inc.

Full title: JOHN FITZPATRICK et al., Respondents, v. STRUCTURE TONE, INC., Appellant…

Court: Appellate Division of the Supreme Court of New York, First Department

Date published: Feb 17, 1994

201 A.D.2d 373 (N.Y. App. Div. 1994)

607 N.Y.S.2d 928

Opinion

February 17, 1994

Appeal from the Supreme Court, New York County (Alfred Toker, J.).

The trial court erred in denying third-party plaintiff Structure Tone's motion to amend its third-party complaint to allege Forest's breach of contract in failing to procure insurance. There was no showing that granting such leave would surprise or otherwise prejudice Forest in any way, breach of contract having already been pleaded in the dismissed cause of action based on an indemnity clause, and mere delay in moving to amend, absent significant prejudice, is not a barrier to amendment (Detrinca v. De Fillippo, 165 A.D.2d 505, 508).

Concur — Sullivan, J.P., Wallach, Rubin and Nardelli, JJ.