HUNTINGTON v. Michael Montesano, etc., Appellant.

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

Roger HUNTINGTON, et al., Plaintiffs, v. FRANK TROTTA AUTO WRECKERS, INC., et al., Respondents, Michael Montesano, etc., Appellant.

Decided: January 25, 1999

SONDRA MILLER, J.P., WILLIAM C. THOMPSON, LEO F. McGINITY and DANIEL F. LUCIANO, JJ. Michael A. Montesano, P.C., Glen Cove, N.Y., appellant pro se. Shaw, Licitra, Bohner, Esernio & Schwartz, P.C., Garden City, N.Y. (Steven H. Blatt of counsel), for respondents.

In an action, inter alia, to recover damages for breach of contract, the defendant Michael Montesano appeals from an order of the Supreme Court, Nassau County (Adams, J.), dated November 18, 1997, which granted the motion of the defendants Frank Trotta Auto Wreckers, Inc., and Charles Trotta for leave to amend their answer to assert a cross claim against him.

ORDERED that the order is affirmed, with costs.

 The Supreme Court providently exercised its discretion in granting the motion of the defendants Frank Trotta Auto Wreckers, Inc., and Charles Trotta to assert a cross claim against the defendant Michael Montesano for conversion of funds held in escrow.   Leave to amend will be freely granted absent a showing of prejudice or surprise (see, CPLR 3025[b];  Noanjo Clothing v. L & M Kids Fashion, 207 A.D.2d 436, 615 N.Y.S.2d 747;  Kraus v. Brandstetter, 185 A.D.2d 302, 586 N.Y.S.2d 269;  Scharfman v. Natl. Jewish Hosp. & Research Ctr., 122 A.D.2d 939, 506 N.Y.S.2d 90).   Mere lateness, in the absence of prejudice, is not a barrier to amendment (see, Quiros v. Polow, 135 A.D.2d 697, 699, 522 N.Y.S.2d 596).   In this case, the motion for leave to amend was made after Montesano was disqualified as the attorney for the respondents in this action and one year after the respondents obtained new counsel.   Under the circumstances of this case, the length of the delay was not unreasonable.   Furthermore, Montesano cannot claim prejudice or surprise since the cross claim arises out of the same facts as those underlying the action brought by the plaintiffs (see, Nissenbaum v. Ferazzoli, 171 A.D.2d 654, 655, 567 N.Y.S.2d 135).


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