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Hickey v. Hutton

Appellate Division of the Supreme Court of New York, Second Department
Apr 27, 1992
182 A.D.2d 801 (N.Y. App. Div. 1992)

Opinion

April 27, 1992

Appeal from the Supreme Court, Suffolk County (Underwood, J.).


Ordered that the order is reversed, as a matter of discretion, with costs, the motion is granted, and the proposed amended answer is deemed served.

The plaintiff commenced the instant action against the appellant alleging various causes of action sounding in fraud, medical malpractice, negligence, and prima facie tort for the intentional infliction of harm. The appellant made a pre-answer motion under CPLR 3211 and 3212 which resulted in dismissal of all the causes of action save the cause of action against the appellant sounding in medical malpractice (see, Hickey v Travelers Ins. Co., 158 A.D.2d 112). When the appellant subsequently served his answer, he did not include the defense of the Statute of Limitations. Three months thereafter, the appellant moved pursuant to CPLR 3025 (b) for leave to amend his answer to assert this defense. The Supreme Court denied that relief. We reverse.

Leave to amend an answer is to be freely given absent prejudice or surprise to the opposing party (see, Herrick v Second Cuthouse, 64 N.Y.2d 692; Fahey v County of Ontario, 44 N.Y.2d 934), provided the defense is meritorious (see, Crimmins Contr. Co. v City of New York, 74 N.Y.2d 166). Although the granting of relief is in the discretion of the trial court and will not be overturned lightly (see, Herrick v Second Cuthouse, supra), it is an improvident exercise of discretion to deny relief if there was no prejudice or surprise to the opposing party (see, McCaskey, Davies Assocs. v New York City Health Hosps. Corp., 59 N.Y.2d 755). Here, the plaintiff has failed to demonstrate any prejudice or surprise resulting from the three-month delay between the service of the answer and the instant motion for leave to serve an amended answer. The plaintiff has, therefore, failed to meet his burden to defeat the motion (see, e.g., Getz v Getz, 130 A.D.2d 710).

Further, the Supreme Court's reliance on Addesso v Shemtob ( 70 N.Y.2d 689), and DeFilippis v Perez ( 148 A.D.2d 490), for the proposition that the defense was waived, was misplaced. The Court of Appeals, in Addesso v Shemtob (supra), held that the appellant waived the defense of lack of personal jurisdiction under CPLR 3211 (a) (8) when it both moved under CPLR 3211 (a) (7) for dismissal and then answered without asserting the defense. DeFilippis v Perez (supra), reached the same result. There is a significant difference under CPLR 3211 (e) between lack of personal jurisdiction (CPLR 3211 [a] [8]) and the Statute of Limitations (CPLR 3211 [a] [5]). CPLR 3211 (e) states that the defense of lack of personal jurisdiction (CPLR 3211 [a] [8]) will be waived "if a party moved on any of the grounds set forth in subdivision (a) without raising such [an] objection", and the Court of Appeals in Addesso relied on this "plain language" in finding a waiver (Addesso v Shemtob, supra, at 690). However, the defense of the Statute of Limitations (CPLR 3211 [a] [5]), pursuant to CPLR 3211 (e) will be waived "unless raised either by such motion [CPLR 3211 (a)] or in the responsive pleading" (emphasis added). Therefore, neither Addesso nor DeFilippis, which concerned CPLR 3211 (a) (8), precluded granting the relief the appellant was seeking (see, Matter of Department of Social Servs. v Jay W., 105 A.D.2d 19; Nelson v Downstate Med. Center, State Univ. Hosp., 135 Misc.2d 980, affd 146 A.D.2d 683). Because the defense is meritorious and the plaintiff has demonstrated no prejudice or surprise, leave to serve the amended answer should have been granted. Bracken, J.P., Lawrence, Eiber and Santucci, JJ., concur.


Summaries of

Hickey v. Hutton

Appellate Division of the Supreme Court of New York, Second Department
Apr 27, 1992
182 A.D.2d 801 (N.Y. App. Div. 1992)
Case details for

Hickey v. Hutton

Case Details

Full title:PATRICK HICKEY, Respondent, v. HAROLD P. HUTTON, Appellant

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

Date published: Apr 27, 1992

Citations

182 A.D.2d 801 (N.Y. App. Div. 1992)
582 N.Y.S.2d 786

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