MESSINGER v. Andrew Messinger, et al., Counterclaim Defendants-Appellants. (2001)

Order, Supreme Court, New York County (Jane Solomon, J.), entered on or about August 10, 1999, which denied plaintiffs' and counterclaim defendants' motion to amend their pleadings to include a Statute of Limitations defense to defendants-respondents' counterclaims and, upon such amendment, to dismiss those counterclaims, unanimously reversed, on the law, without costs, and the motion granted. The Clerk is directed to enter judgment in favor of appellants dismissing defendants-respondents' counterclaims. Appeal from order, same court and Justice, entered on or about November 1, 1999, which denied plaintiff's and defendants-appellants' motion for reargument, unanimously dismissed, without costs, as taken from a non-appealable order.

 Pursuant to CPLR 203(d), counterclaims which would otherwise be barred by the Statute of Limitations are not barred so long as they arise from the same transaction or occurrences as the primary claim (Matter of SCM Corp. [Fisher Park Lane Co.], 40 N.Y.2d 788, 390 N.Y.S.2d 398, 358 N.E.2d 1024). Here, the alleged assault and battery of defendant treating physicians by plaintiff and the defendants on the counterclaim, which occurred immediately upon hearing of decedent's death, cannot be considered as arising from the same occurrence. The assault was not a part of the alleged malpractice but arguably only a result of it. The two actions are related, but there is no common thread tying the two together to warrant revival of the assault counterclaim under CPLR 203(d) (Levy v. Kendricks, 170 A.D.2d 387, 566 N.Y.S.2d 604).

 Pursuant to CPLR 3025(b) leave to amend a pleading is to be freely given absent significant prejudice or surprise directly resulting from the delay. Defendants fail to assert any claim of prejudice. The fact that plaintiff and defendants on the counterclaim failed to assert a reasonable excuse for their delay is insufficient to prohibit them from amending their reply (Cameron v. 1199 Housing Corp., 208 A.D.2d 454, 617 N.Y.S.2d 314).