DRUMMOND v. Robin Kumler, et al., Defendants. (2000)

Order, Supreme Court, New York County (Edward Lehner, J.), entered June 1, 1999, granting plaintiff's motion for leave to amend the complaint and denying defendants-appellants' cross motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

 The motion court properly exercised its discretion in granting plaintiff's motion for leave to amend her complaint since appellants, in opposing the motion, failed to demonstrate that the grant of leave would be prejudicial to them (see, CPLR 3025(b);  Edenwald Contr. Co., Inc. v. City of New York, 60 N.Y.2d 957, 471 N.Y.S.2d 55, 459 N.E.2d 164;  Martin v. Briggs, 235 A.D.2d 192, 199, 663 N.Y.S.2d 184).   Also proper was the motion court's denial of appellants' motion to dismiss the action as time-barred, since the evidence presented by plaintiff in support of her claim that she had been continuously represented by appellants, even if not conclusive, was sufficient to raise triable issues as to whether the running of the statutory period had been tolled (see, Ackerman v. Price Waterhouse, 252 A.D.2d 179, 204-206, 683 N.Y.S.2d 179;  Fred Smith Plumbing & Heating Co. v. Christensen, 233 A.D.2d 207, 649 N.Y.S.2d 684).   Moreover, the appropriate limitations period is six years since the damages, as alleged, arise out of the contractual relationship between plaintiff and appellants and the action was commenced prior to the 1996 amendment of CPLR 214(6)(see, Ackerman, supra ).

MEMORANDUM DECISION.