ARIAS PAULINO v. ACADEMY BUS TOURS INC (2008)

Supreme Court, Appellate Division, First Department, New York.

Bernarda ARIAS-PAULINO, et al., Plaintiffs-Appellants, v. ACADEMY BUS TOURS, INC., et al., Defendants-Respondents.

Decided: February 26, 2008

TOM, J.P., SAXE, FRIEDMAN, GONZALEZ, McGUIRE, JJ.

Pollack, Pollack, Isaac & DeCicco, New York (Brian J. Isaac of counsel), for appellants. Maloof, Lebowitz, Connahan & Oleske, P.A., New York (Jerald F. Oleske of counsel), for respondents.

Order, Supreme Court, Bronx County (Howard R. Silver, J.), entered December 22, 2006, which, to the extent appealed from as limited by the briefs, granted defendants' motion to renew and reargue a prior motion to amend their answer to include the affirmative defenses of release and accord and satisfaction and, upon reargument, granted the prior motion and dismissed all plaintiffs' claims up to $1,000,000, unanimously reversed, on the law and the facts, without costs, the motion denied and the claims reinstated.

It is undisputed that defendant Academy Bus Tours, Inc. received the release in July 2002 and did not move to amend its answer until approximately two and a half years later, in 2005, during which time plaintiffs not only litigated the matter extensively but also prepared for and participated in a mediation. Defendants' motion to amend their answer should have been denied upon the ground of laches (see Noy v. 765 9th Ave. Corp., 281 A.D.2d 232, 721 N.Y.S.2d 651 [2001] ).

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