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Stow v. City of New York

Appellate Division of the Supreme Court of New York, Second Department
Jul 7, 1986
122 A.D.2d 45 (N.Y. App. Div. 1986)

Opinion

July 7, 1986

Appeal from the Supreme Court, Kings County (Krausman, J.).


Order affirmed, without costs or disbursements.

On February 4, 1979, the plaintiff, a New York City fire-fighter, allegedly sustained personal injuries while fighting a fire at 988 Bedford Avenue, Brooklyn. At the time of the occurrence, the building was owned by the defendant Carmen Gonzalez. The city acquired title to the property on June 13, 1979.

On February 11, 1980, a hearing was held in the office of the Comptroller of the City of New York pursuant to General Municipal Law § 50-h. The following colloquy occurred:

"TO COUNSEL: Do you plan to sue anyone else in this matter?

"BY PLAINTIFF'S COUNSEL: Yes, we plan to sue maybe the owner, Miss Carmen Gonzalez * * *

"TO COUNSEL: That is the owner of the building.

"BY COUNSEL: Yes".

The plaintiff commenced this action in or about April 1980 against the city and Gonzalez alleging that both were the owners of the building and liable to the plaintiff for his injuries. Gonzalez was never served. In June 1980 the city answered, incorrectly admitting ownership of the building.

Pretrial proceedings occurred, and a number of conferences were held with the city under the assumption that it was the owner of the building. By notice of motion dated August 23, 1985, the city moved, pursuant to CPLR 3025 (b), to amend its answer to deny ownership of the building, which motion was granted by Special Term. We affirm.

Leave to amend pleadings shall be freely given absent prejudice or surprise resulting directly from the delay (see, Fahey v County of Ontario, 44 N.Y.2d 934). The plaintiff cannot claim surprise as he had actual knowledge that the city did not own the building, and he knew or had reason to believe that Gonzalez was the owner as evidenced by the statements made at the Comptroller's hearing and the express provisions in the complaint. Thus, the plaintiff has not been prejudiced by the city's delay (see, Wyso v City of New York, 91 A.D.2d 661; cf. Griffin v Columbia Univ., 51 A.D.2d 896).

The city's failure to respond to the plaintiff's notice to admit is also not determinative, as the questions contained therein do not involve questions of fact but clearly require conclusions of law (see, Siegel, Supplementary Practice Commentary, McKinney's Cons Laws of NY, Book 7B, CPLR C3123:1, p 284, 1986 Pocket Part).

Accordingly, Special Term did not abuse its discretion in granting the city's motion for leave to amend its answer. Mangano, J.P., Brown, Weinstein and Spatt, JJ., concur.


Summaries of

Stow v. City of New York

Appellate Division of the Supreme Court of New York, Second Department
Jul 7, 1986
122 A.D.2d 45 (N.Y. App. Div. 1986)
Case details for

Stow v. City of New York

Case Details

Full title:GERALD A. STOW, Appellant, v. CITY OF NEW YORK, Respondent, et al.…

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

Date published: Jul 7, 1986

Citations

122 A.D.2d 45 (N.Y. App. Div. 1986)

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