BRENNER v. Edward Trerise, appellant. (1999)

In an action to recover damages for personal injuries, etc., the defendant Edward Trerise appeals from an order of the Supreme Court, Kings County (Steinhardt, J.), dated May 18, 1998, which denied his motion for summary judgment dismissing the complaint insofar as asserted against him and granted the plaintiffs' cross motion for leave to serve an amended complaint.

ORDERED that the order is affirmed, with costs to the respondents payable by the appellant.

The Supreme Court properly denied the motion of the defendant Edward Trerise for summary judgment because he failed to demonstrate his prima facie entitlement thereto, and properly granted the plaintiffs' motion for leave to serve an amended complaint because it simply alleged a new theory of recovery based upon facts contained in the original complaint (see, CPLR 3212[b];  Barraza v. Sambade, 212 A.D.2d 655, 622 N.Y.S.2d 964;  Matter of Edwards v. Board of Educ. of City of N.Y., 32 A.D.2d 690, 299 N.Y.S.2d 991;  Masters v. Becker, 22 A.D.2d 118, 254 N.Y.S.2d 633).

The appellant's remaining contentions are without merit (see, CPLR 2004;  Tewari v. Tsoutsouras, 75 N.Y.2d 1, 12-13, 550 N.Y.S.2d 572, 549 N.E.2d 1143).

MEMORANDUM BY THE COURT.