Frank L. Ciminelli Constr. v. Cty. of Erie

Full title: FRANK L. CIMINELLI CONSTRUCTION CO., INC., Appellant, v. COUNTY OF ERIE…

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

Date published: Feb 3, 1995

212 A.D.2d 1046 (N.Y. App. Div. 1995)

624 N.Y.S.2d 988

Opinion

February 3, 1995

Appeal from the Supreme Court, Erie County, Whelan, J.

Present — Green, J.P., Balio, Fallon, Callahan and Boehm, JJ.

Order unanimously affirmed with costs. Memorandum: Supreme Court properly granted defendant's motion to amend the answer. Leave to amend pleadings shall be freely given absent prejudice or surprise resulting directly from the delay (CPLR 3025 [b]; Fahey v. County of Ontario, 44 N.Y.2d 934, 935). Defendant's first and second counterclaims do not prejudice plaintiff, are meritorious on their face, and are not barred by the Statute of Limitations (see, McCaskey, Davies Assocs. v. New York City Health Hosps. Corp., 59 N.Y.2d 755).