Amherst Bowling Center, Inc. v. Dolce

• Decision Date: 20 October 1960
• Citation: Amherst Bowling Center, Inc. v. Dolce, 206 N.Y.S.2d 193, 11 A.D.2d 1079 (N.Y. App. Div. 1960)
• Parties: AMHERST BOWLING CENTER, INC., Respondent, v. Joseph S. DOLCE, Individually and as Administrator etc. of Ross A. Mauri, deceased, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 193

206 N.Y.S.2d 193

11 A.D.2d 1079

AMHERST BOWLING CENTER, INC., Respondent, v. Joseph S. DOLCE, Individually and as Administrator etc. of Ross A. Mauri, deceased, Appellant.

Supreme Court, Appellate Division, Fourth Department.

Oct. 20, 1960.

Morey, Schlenker & Murray, Buffalo, for respondent (William F. Morey, of counsel).

Abe Roth, Buffalo, for appellant.

Before BASTOW, J. P., and GOLDMAN, HALPERN, McCLUSKY, and HENRY, JJ.

MEMORANDUM.

There was no undue delay in the making of defendant's motion to amend his answer to set up the affirmative defense of fraud. The principal grounds of opposition to the granting of the motion were the contentions that the proposed affirmative defense was insufficient in law as a plea of fraud and that plaintiff would be prejudiced by service of the amended answer for it would be unable to move against the amended answer for summary judgment, as it asserts it might have against the original answer. The general policy of liberality with respect to amending pleadings requires that the defendant be given an opportunity to assert his affirmative defense. In granting defendant's motion we are not passing upon the sufficiency or merits of the amended answer. Coron v. Lincks, 259 App.Div. 924, 20 N.Y.S.2d 359; Lazarus v. Rice, 268 App.Div. 985, 52 N.Y.S.2d 781; Gillette v. Allen, 269 App.Div....