Alchus v. Ayers

• Decision Date: 16 May 1977
• Citation: 394 N.Y.S.2d 276,57 A.D.2d 881
• Parties: James ALCHUS et al., Respondents, v. James H. AYERS, Defendant, and Huff Auto Body, Inc., Appellant.
• Court: New York Supreme Court — Appellate Division

Page 276

394 N.Y.S.2d 276

57 A.D.2d 881

James ALCHUS et al., Respondents, v. James H. AYERS, Defendant, and Huff Auto Body, Inc., Appellant.

Supreme Court, Appellate Division, Second Department.

May 16, 1977.

Donald E. Deegan, Huntington Station (Marshall D. Sweetbaum, Plainview, of counsel), for appellant.

Morris J. Eisen, P. C., New York City (Mark Kressner, New York City, of counsel), for respondents.

Before MARTUSCELLO, J. P., and LATHAM, SHAPIRO and O'CONNOR, JJ.

MEMORANDUM BY THE COURT.

In a negligence action to recover damages for personal injuries, etc., defendant Huff Auto Body, Inc. appeals from an order of the Supreme Court, Queens County, dated October 27, 1976, which denied its motion for leave to amend its answer.

Order affirmed, with $50 costs and disbursements.

Appellant seeks, by the proposed amendment, to deny that defendant Ayers had its permission to operate the motor vehicle which was involved in the accident, as is alleged in the complaint. Plaintiffs-respondents' ability to investigate the facts attendant upon such a denial is considerably altered by the change which has occurred since the time of the original pleading, to wit, defendant Ayers is now in prison. Permission to amend was, for that reason, properly denied (see De Fabio v. Nadler Rental Serv., 27 A.D.2d 931, 278 N.Y.S.2d 723).