CPLR 3025 (subd. [b]) permits a party to amend or supplement his pleading "at any time" and that "leave shall be freely given upon such terms as may be just". In view of the broad plenary discretion given the courts to amend a pleading and in the circumstances of the case, I am constrained to grant this application, as the ends of justice will be better served by the avoidance of two actions ( Homer v. Homer, 282 App. Div. 699; Sovik v. Sovik, 282 App. Div. 794; Herzog v. Herzog, 43 Misc.2d 1062). And it does not appear that such amendment will be prejudicial to the defendant in view of the allowance of temporary alimony and counsel fees previously made.
Moreover, in determining whether to grant leave the court should not become involved in the merits of the litigation or the sufficiency of the pleadings, any question of the sufficiency of the complaint or answer being left to a motion addressed specifically to that issue, unless merit is plainly lacking and the allowance of the amendment or supplement would be idle ( Town Bd. of Fallsburgh v. National Sur. Corp., supra). In our opinion the possible avoidance of two actions and the ends of justice will be better served by the granting of plaintiff's application ( Sovik v. Sovik, 282 App. Div. 794; Homer v. Homer, 282 App. Div. 699; Herzog v. Herzog, 43 Misc.2d 1062; cf. Ann., 98 ALR 2d 1264). In the last-cited case the plaintiff moved to serve a supplemental complaint adding to her cause of action for separation one for absolute divorce.
In Homer v. Homer ( 282 App. Div. 699), plaintiff who had commenced an action for separation, was permitted to serve a supplemental complaint containing an additional cause of action for divorce based upon the claimed adultery which occurred subsequent to the original action. To the same effect was the holding in Sovik v. Sovik ( 282 App. Div. 794), where plaintiff in a divorce action was permitted to serve a supplemental complaint to include a cause of action for adultery based upon alleged acts of adultery occurring after the commencement of the action. The court there said that "The possible avoidance of two actions and the ends of justice will be better served by the granting of the application".