Opinion
December 2, 1957
In an action to recover damages for personal injuries and for medical expenses and loss of services, the appeal is from an order granting respondent's motion for leave to serve an amended answer so as to withdraw an admission that respondent created a sidewalk opening in a parking area, which caused appellant Aileen Nathan to fall. Order reversed, with $10 costs and disbursements, and motion denied. It was an improvident exercise of discretion, resulting in prejudice to appellants, to permit the amendment, in March, 1956, of the original answer, served in May, 1953, so as to withdraw the admission of the creation of the opening. Moreover, it appears that respondent had knowledge of the inaccuracy of its admission in October, 1954, and did not move to amend until February, 1956. This constituted gross laches ( Drescher v. Mirkus, 211 App. Div. 763; Luback v. Hirsch, 232 App. Div. 691; Sarullo v. Newstand Realty Corp., 2 A.D.2d 854; Stafford v. Todd Shipyards Corp., 242 App. Div. 667; Hernstat v. Sab Holding Corp., 243 App. Div. 808). Nolan, P.J., Wenzel, Beldock, Ughetta and Kleinfeld, JJ., concur.