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Verizon v. Cons. Edison

Appellate Division of the Supreme Court of New York, First Department
Mar 22, 2007
38 A.D.3d 391 (N.Y. App. Div. 2007)

Opinion

No. 576.

March 22, 2007.

Order, Supreme Court, New York County (Joan A. Madden, J.), entered August 25, 2006, which denied defendant's motion to dismiss the complaint for failure to state a cause of action or for summary judgment, and granted plaintiff's cross motion to amend its complaint, unanimously affirmed, with costs.

Richard W. Babinecz, New York (Helman R. Brook of counsel), for appellant.

Pillinger Miller Tarallo, LLP, Elmsford (David E. Hoffberg of counsel), for respondent.

Before: Tom, J.P., Andrias, Sullivan, Williams and Gonzalez, JJ.


This is an action for property damage allegedly attributed to defendant's negligence. Defendant's dismissal motion was based on an asserted conflict between facts set forth in the bill of particulars and in the complaint. The court resolved this conflict by granting plaintiff leave to amend its pleading. It is axiomatic that absent prejudice or surprise, such leave should be freely given (CPLR 3025 [b]), except where the proposed amendment plainly lacks merit and would serve no purpose than to needlessly complicate and/or delay discovery and trial ( Berger v Water Commrs. of Town of Water ford, 296 AD2d 649).

Defendant seeks dismissal of the complaint prior to discovery because it was inartfully drawn, a characterization with which we agree. Notwithstanding the above, not only is allowing such an amendment within the court's discretion ( id.), but there is no inherent contradiction between the complaint and plaintiff's bill of particulars, and defendant has not demonstrated any prejudice or surprise arising out of granting such an amendment.


Summaries of

Verizon v. Cons. Edison

Appellate Division of the Supreme Court of New York, First Department
Mar 22, 2007
38 A.D.3d 391 (N.Y. App. Div. 2007)
Case details for

Verizon v. Cons. Edison

Case Details

Full title:VERIZON NEW YORK INC., Respondent, v. CONSOLIDATED EDISON, INC., Appellant

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

Date published: Mar 22, 2007

Citations

38 A.D.3d 391 (N.Y. App. Div. 2007)
2007 N.Y. Slip Op. 2481
830 N.Y.S.2d 902

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