Ricchezza v Metropolitan Transp. Auth.

2010 NY Slip Op 09491 [79 AD3d 998]

December 21, 2010

Appellate Division, Second Department

As corrected through Wednesday, February 16, 2011

John C. Ricchezza, Appellant, v Metropolitan TransportationAuthority et al., Respondents.

—[*1]Novick, Edelstein, Lubell, Reisman, Wasserman & Leventhal, P.C., Yonkers, N.Y. (Juan C.Restrepo of counsel), for appellant.

Seth J. Cummins, New York, N.Y. (JosÉ R. Rios of counsel), for respondents.

In an action to recover damages for personal injuries, the plaintiff appeals, as limited by his brief,from so much of an order of the Supreme Court, Westchester County (Colabella, J.), entered March 3,2010, as granted that branch of the defendants' motion which was pursuant to CPLR 3025 (b) forleave to amend the answer to add the defense of statute of limitations.

Ordered that the order is affirmed insofar as appealed from, with costs.

Contrary to the plaintiff's contention, "defenses waived under CPLR 3211 (e) can nevertheless beinterposed in an answer amended by leave of court pursuant to CPLR 3025 (b) so long as theamendment does not cause the other party prejudice or surprise resulting directly from the delay"(Endicott Johnson Corp. v Konik Indus., 249 AD2d 744, 744 [1998]; see Complete Mgt., Inc. v Rubenstein, 74AD3d 722, 723 [2010]; Ingrami vRovner, 45 AD3d 806, 808 [2007]; Nunez v Mousouras, 21 AD3d 355, 356 [2005]). Here, the SupremeCourt providently exercised its discretion in granting that branch of the defendants' motion which wasfor leave to amend the answer to add a statute of limitations defense. The plaintiff failed to demonstrateany prejudice or surprise resulting from the delay between the service of the answer and the instantmotion for leave to serve an amended answer (see CPLR 3025 [b]; McCaskey, Davies &Assoc. v New York City Health & Hosps. Corp., 59 NY2d 755, 757 [1983]; Fahey vCounty of Ontario, 44 NY2d 934, 935 [1978]; Sindle v New York City Tr. Auth., 33NY2d 293, 296-297 [1973]; Sayers v Albicocco, 298 AD2d 572, 573 [2002];Henderson v Gulati, 270 AD2d 308, 309 [2000]; Hickey v Hutton, 182 AD2d 801,802 [1992]). Furthermore, the evidence submitted in support of the motion indicated that the proposedamendment was neither palpably insufficient nor patently devoid of merit (see Hines v City of New York, 43 AD3d869 [2007]). Mastro, J.P., Florio, Dickerson, Belen and Lott, JJ., concur.