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Stoianoff v. Francis

Appellate Division of the Supreme Court of New York, Second Department
Apr 22, 1991
172 A.D.2d 744 (N.Y. App. Div. 1991)

Opinion

April 22, 1991

Appeal from the Supreme Court, Westchester County (Gurahian, J.).


Ordered that the order is affirmed insofar as appealed from, with costs.

The Supreme Court properly exercised its discretion in denying the plaintiff's motion pursuant to CPLR 3025 (b) for leave to serve an amended complaint which was made on the eve of trial. Although leave to serve an amended pleading is to be freely granted (see, CPLR 3025 [b]; Edenwald Contr. Co. v. City of New York, 60 N.Y.2d 957; McCaskey, Davies Assocs. v New York City Health Hosps. Corp., 59 N.Y.2d 755), a motion for that relief is committed to the sound discretion of the trial court (see, Edenwald Contr. Co. v. City of New York, supra, at 959) and the resulting determination should not be lightly set aside (see, Hypertronics Inc. v. Digital Equip. Corp., 159 A.D.2d 607, 608; Garza v. VICO Utils., 150 A.D.2d 520, 521). Furthermore, the court in determining whether to allow the amendment, generally will not examine the merits of the proposed amendment "unless the insufficiency or lack of merit is clear and free from doubt" (Norman v. Ferrara, 107 A.D.2d 739, 740; accord, Girardi v Community Hosp., 137 A.D.2d 788, 790; Island Cycle Sales v Khlopin, 126 A.D.2d 516, 518).

Turning to the facts at bar, we find that the amendments which the plaintiff seeks to interpose are distinct from the original negligence cause of action upon which recovery only for property damage was sought and are based upon previously unalleged facts. Thus, to permit the plaintiff to assert the amended causes of action nearly nine years after the action was commenced and on the eve of trial would needlessly prolong the action to the remaining defendant's detriment (see, Alexander v. Seligman, 131 A.D.2d 528). In any event, the amended causes of action are clearly lacking in merit.

We have reviewed the plaintiff's remaining contention and find it to be without merit. Thompson, J.P., Brown, Harwood and Balletta, JJ., concur.


Summaries of

Stoianoff v. Francis

Appellate Division of the Supreme Court of New York, Second Department
Apr 22, 1991
172 A.D.2d 744 (N.Y. App. Div. 1991)
Case details for

Stoianoff v. Francis

Case Details

Full title:CARROLL B. STOIANOFF, Appellant, v. ARTHUR FRANCIS et al., Defendants, and…

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

Date published: Apr 22, 1991

Citations

172 A.D.2d 744 (N.Y. App. Div. 1991)