| Anoun v City of New York |
| 2011 NY Slip Op 05638 [85 AD3d 694] |
| June 30, 2011 |
| Appellate Division, First Department |
| Heithem Anoun, Appellant, v City of New York,Respondent. |
—[*1] Michael A. Cardozo, Corporation Counsel, New York (Julie Steiner of counsel), forrespondent.
Order, Supreme Court, New York County (Karen S. Smith, J.), entered October 19, 2009,which granted defendant's motion to amend its answer to change an admission of ownership ofthe alleged accident location to a denial, unanimously affirmed, without costs.
Plaintiff alleges that on July 1, 2008, he tripped and fell over a depressed metal gratinglocated in the ground at Chelsea Waterside Park. Plaintiff served a timely notice of claim upondefendant and, on November 5, 2008, commenced this action. In January 2009, defendantanswered and admitted ownership and control over the area where the accident occurred.
Defendant subsequently moved for, inter alia, summary judgment, arguing that it did not ownthe subject park. Defendant provided evidence that the property was owned by the State. Whendefendant realized that it had previously admitted ownership, defendant moved for leave to servean amended answer and to stay a determination of the summary judgment motion.
It is well established that leave to amend a pleading is freely given "absent prejudice orsurprise resulting directly from the delay" (Fahey v County of Ontario, 44 NY2d 934, 935[1978]; see CPLR 3025 [b]). "Prejudice arises when a party incurs a change in position oris hindered in the preparation of its case or has been prevented from taking some measure insupport of its position" (Valdes v Marbrose Realty, 289 AD2d 28, 29 [2001]). Here, the90-day period within which plaintiff could serve the State with a notice of claim terminated onSeptember 29, 2008, more than three months prior to defendant's admission of ownership. Thus,the admission could not have caused plaintiff any prejudice. For the same reasons, plaintiff'sclaims of estoppel are unfounded (seeBaje Realty Corp. v Cutler, 32 AD3d 307, 310 [2006]).
Although it may ultimately be found that defendant participates in the park's operation orretains some control over it, that does not warrant denial of the motion to amend. On such amotion, the court considers "the sufficiency of the merits of the proposed amendment" (Hellerv Louis Provenzano, Inc., 303 AD2d 20, 25 [2003] [internal quotation marks omitted]).Here, defendant's submissions, which included an affidavit of the title examiner and [*2]appropriation maps showing that the property was the subject of ataking by the State, were sufficient to support the proposed amendment (see e.g. MBIA Ins. Corp. v Greystone &Co., Inc., 74 AD3d 499 [2010]). Concur—Tom, J.P., Saxe, Catterson, Moskowitzand Acosta, JJ.