MOHAMMED AHMAD v. Orlando Santana, Defendant-Respondent.

Reset A A Font size: Print

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

Tariq MOHAMMED, an Infant, by Mohammed AHMAD, His Parent and Natural Guardian, et al., Plaintiffs-Respondents, v. CITY OF NEW YORK, et al., Defendants, Jose Martinez, Appellant, Orlando Santana, Defendant-Respondent.

Decided: August 18, 1997

Before MILLER, J.P., and THOMPSON, JOY and LUCIANO, JJ. Goldman & Grossman, New York City (Eleanor R. Goldman, of counsel), for appellant. Finz & Finz, P.C., New York City (Jay L. Feigenbaum, of counsel), for plaintiffs-respondents. Congdon, Flaherty, O'Callaghan, Reid, Donlon, Travis & Fishlinger, Garden City (Christine Gasser, of counsel), for defendant-respondent.

In an action to recover damages for personal injuries, etc., the defendant Jose Martinez appeals from an order of the Supreme Court, Queens County (Lerner, J.), dated December 16, 1996, which denied his motion for leave to amend his answer.

ORDERED that the order is affirmed, with one bill of costs payable by the respondents appearing separately and filing separate briefs.

 The Supreme Court providently exercised its discretion in denying the motion of Jose Martinez to amend his answer to change an admission to a denial of the allegation that he had given the defendant Orlando Santana permission to drive his car.   This court has consistently maintained that “while leave to amend a pleading shall be freely granted (see, CPLR 3025[b] ), a motion to amend is committed to the broad discretion of the trial court (see, Edenwald Contr. Co. v. City of New York, 60 N.Y.2d 957, 471 N.Y.S.2d 55, 459 N.E.2d 164;  Kramer & Sons v. Facilities Dev. Corp., 135 A.D.2d 942, 522 N.Y.S.2d 351;  Fulford v. Baker Perkins, 100 A.D.2d 861, 474 N.Y.S.2d 114), and the resulting determination ‘will not lightly be set aside’ (Beuschel v. Malm, 114 A.D.2d 569, 494 N.Y.S.2d 185)” (Ross v. Ross, 143 A.D.2d 429, 532 N.Y.S.2d 573;  see, Citrin v. Royal Ins. Co., 172 A.D.2d 795, 569 N.Y.S.2d 166).   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, Branch v. Abraham & Strauss Dept. Store, 220 A.D.2d 474, 475, 632 N.Y.S.2d 168;  Pellegrino v. New York City Tr. Auth., 177 A.D.2d 554, 557, 576 N.Y.S.2d 154).

In the instant case, Jose Martinez moved to amend his answer almost eight years after his initial answer had been interposed, and he failed to offer a reasonable excuse for this inordinate delay.   Additionally, the facts upon which Martinez based his motion to amend must have been known to him since the inception of the action.   To allow Martinez to amend his answer at such a late date would prejudice the other parties.

MEMORANDUM BY THE COURT.

Copied to clipboard