SIDOR v. Colin Van Tuyl, etc., Defendant Third-Party Plaintiff-Appellant; (1999)

In an action, inter alia, to recover damages for personal injuries (Action No. 1) and a related action, inter alia, to recover damages for wrongful death (Action No. 2), Joseph Zuhoski and Gregory Zuhoski appeal from so much of an order of the Supreme Court, Suffolk County (Berler, J.), dated September 30, 1997, as denied their motion for summary judgment dismissing the complaint in Action No. 1, and Colin Van Tuyl, as Executor of the Estate of Janet A. Van Tuyl, the defendant third-party plaintiff in Action No. 1 and a plaintiff in Action No. 2, and Brianna Van Tuyl and Colin Van Tuyl, individually, the plaintiffs in Action No. 2, separately appeal from so much of the same order as (1) denied the Zuhoskis' motion in Action No. 1, and (2) granted that branch of the motion of Martin Sidor & Sons, Inc., a defendant in Action No. 2, to amend its answer in Action No. 2.

ORDERED that the appeal by Brianna Van Tuyl and Colin Van Tuyl, individually, from so much of the order as denied the Zuhoskis' motion to dismiss the complaint in Action No. 1 is dismissed, as they are not aggrieved by that part of the order;  and it is further,

ORDERED that the order is affirmed insofar as reviewed;  and it is further,

ORDERED that the respondents are awarded one bill of costs.

 While leave to amend a pleading should be freely given (see, CPLR 3025[b] ), the decision as to whether to grant leave is generally left to the sound discretion of the trial court (see, Edenwald Contr. Co. v. City of New York, 60 N.Y.2d 957, 959, 471 N.Y.S.2d 55, 459 N.E.2d 164;  Leibowitz v. Plaza 400 Owners' Corp., 226 A.D.2d 681, 682, 641 N.Y.S.2d 718;  Felix v. Lettre, 204 A.D.2d 679, 680, 612 N.Y.S.2d 435;  Fulford v. Baker Perkins, Inc., 100 A.D.2d 861, 474 N.Y.S.2d 114), and its determination will not be lightly set aside (see, Branch v. Abraham & Strauss Dept. Store, 220 A.D.2d 474, 475, 632 N.Y.S.2d 168;  Beuschel v. Malm, 114 A.D.2d 569, 494 N.Y.S.2d 185).   In exercising its discretion, the court should consider how long the amending party was aware of the facts upon which the motion was predicated, whether a reasonable excuse for the delay was offered, and whether prejudice resulted therefrom (see, Caruso v. Anpro, Ltd., 215 A.D.2d 713, 627 N.Y.S.2d 72;  Pellegrino v. New York City Tr. Auth., 177 A.D.2d 554, 557, 576 N.Y.S.2d 154).   A proposed amendment that creates prejudice or surprise to the opposing party should not be permitted (see, Corsale v. Pantry Pride Supermarket, 197 A.D.2d 659, 660, 602 N.Y.S.2d 887).   In addition, the court must examine the underlying merit of the proposed amendment since to do otherwise would be a waste of judicial resources (see, McKiernan v. McKiernan, 207 A.D.2d 825, 616 N.Y.S.2d 629).  Under the circumstances of this case, the failure of Martin Sidor & Sons, Inc., to deny the allegations contained in Paragraph No. 13 of the complaint in Action No. 2 was an inadvertent mistake and, therefore, the court did not improvidently exercise its discretion in granting its motion for leave to amend its answer.

 Because there is an issue of fact as to the status of the appellant Gregory Zuhoski's employment at the time of the accident and whether he was acting within the scope of his employment at that time, the court properly denied the Zuhoskis' motion for summary judgment (see, Workers' Compensation Law § 29[6];  Naso v. Lafata, 4 N.Y.2d 585, 589, 176 N.Y.S.2d 622, 152 N.E.2d 59;  Jaglall v. Supreme Petroleum Co. of New Jersey, 185 A.D.2d 971, 972, 587 N.Y.S.2d 413).

In light of the above findings, we need not reach the Zuhoskis' remaining contention.

MEMORANDUM BY THE COURT.