VAN KIPNIS v. VAN KIPNIS (2004)

Order, Supreme Court, New York County (Judith J. Gische, J.), entered December 3, 2003, which, in this divorce action, granted defendant's motion for leave to file an amended answer, unanimously affirmed, without costs.

Plaintiff did not, in opposing defendant's motion to amend his answer to add an affirmative defense premised upon an alleged 1965 prenuptial agreement entered into in France, make the requisite showing that the proposed amendment would cause her to sustain prejudice or unfair surprise (see Valdes v. Marbrose Realty Inc., 289 A.D.2d 28, 734 N.Y.S.2d 24).   While the amendment may necessitate some additional discovery, this concern was addressed by the court, which granted plaintiff an additional 60 days to take discovery with respect to the new defense (see id.).   Nor could plaintiff, who signed the agreement, have been unfairly surprised by the agreement.   Contrary to plaintiff's contention, the proposed amendment is not barred by the doctrine of judicial estoppel.   Defendant has never prevailed in any judicial proceeding based on positions incompatible with his new defense (see Matter of Bianchi v. New York State Div. of Hous. & Community Renewal, 5 A.D.3d 303, 774 N.Y.S.2d 127).   Finally, the proposed amendment is not palpably insufficient (see Tishman Constr. Corp. v. City of New York, 280 A.D.2d 374, 720 N.Y.S.2d 487).