Opinion
April 13, 1971
Order, Supreme Court, New York County, entered November 13, 1970, unanimously modified, on the law and in the exercise of discretion, to grant the motion of defendants-appellants to serve an amended answer alleging a defense of Statute of Frauds, and otherwise affirmed, without costs and without disbursements. The action is for services said to have been performed under an alleged oral contract. One of the three grounds assigned by Special Term for denial of permission to amend was, citing CPLR 3025 (subd. [b]) that the matter proposed to be added was neither "additional" nor "subsequent." The quoted words of limitation apply to supplemental material, but not to an amendment. As to alleged delay in seeking to amend, it is disclosed that the application followed closely upon the acquisition of information during an examination. Nor is the third ground for denial valid: that a second cause sounds in quantum meruit (see Minichiello v. Royal Business Funds Corp., 18 N.Y.2d 521). Leave to amend should have been "freely given." However, the corollary motion for summary judgment, based on the proposed defense, was properly denied, there being an issue as to how long it would take to perform under the contract.
Concur — Stevens, P.J., Capozzoli, Markewich, Tilzer and Eager, JJ.