Opinion
2004747SC.
Decided April 13, 2005.
Appeal by defendant from an order of the District Court, Suffolk County (J. Flanagan, J.), entered on April 26, 2004, denying her motion to dismiss the action and granting plaintiff's cross motion for leave to amend the complaint.
Order unanimously affirmed without costs.
PRESENT: RUDOLPH, P.J., ANGIOLILLO and COVELLO, JJ.
In this action for breach of contract, plaintiff alleges in the complaint that it was hired by defendant to perform landscaping services and maintenance from November 2001 to June 12, 2002 at her home in Wading River. In addition, plaintiff alleged that a judgment was obtained against Frank Messina (defendant's husband) for the work, labor and services alleged in the instant complaint. Defendant moved to dismiss the action pursuant to CPLR 3211 (a) (7) and for failing to name Frank Messina as a party to the action. Plaintiff cross-moved for leave to amend the complaint.
Contrary to defendant's argument, the court below properly granted plaintiff's cross motion for leave to amend the complaint since there was no showing of prejudice by defendant (CPLR 3025 [b]). Nor was there proof of any prejudice in treating plaintiff's application to amend the complaint as a cross motion (CPLR 2215) since the failure to comply with the time requirements of CPLR 2215 may be excused ( see Walker v. Metro-North Commuter R.R., 11 AD3d 339).
In addition, we find that the court below properly denied the branch of defendant's motion to dismiss pursuant to CPLR 3211 (a) (7). In liberally construing the complaint in a light most favorable to the plaintiff and accepting all the factual allegations as true, the complaint sufficiently alleges a cause of action for breach of contract.
We have considered defendant's remaining contentions and find them to be without merit.