Anoun v. the City of N.Y.

CourtNew York Supreme Court Appellate Division
Writing for the CourtTOM, J.P., SAXE, CATTERSON, MOSKOWITZ, ACOSTA, JJ.
PartiesHeithem ANOUN, Plaintiff–Appellant,v.The CITY OF NEW YORK, Defendant–Respondent.
Decision Date30 June 2011

85 A.D.3d 694
926 N.Y.S.2d 98
2011 N.Y. Slip Op. 05638

Heithem ANOUN, Plaintiff–Appellant,
v.
The CITY OF NEW YORK, Defendant–Respondent.

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

June 30, 2011.


[926 N.Y.S.2d 99]

Rimland & Associates, New York (Anthony M. Grisanti of counsel), for appellant.Michael A. Cardozo, Corporation Counsel, New York (Julie Steiner of counsel), for respondent.TOM, J.P., SAXE, CATTERSON, MOSKOWITZ, ACOSTA, JJ.

[85 A.D.3d 694] 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 of the 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 grating located in the ground at Chelsea Waterside Park. Plaintiff served a timely notice of claim upon defendant and, on November 5, 2008, commenced this action. In January 2009, defendant answered 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 own the subject park. Defendant provided evidence that the property was owned by the State. When defendant realized that it had previously admitted ownership, defendant moved for leave to serve an 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 or surprise resulting directly from the delay” ( Fahey v. County of Ontario, 44 N.Y.2d 934, 935, 408 N.Y.S.2d 314, 380 N.E.2d 146 [1978]; see CPLR 3025[b] ). “Prejudice arises when a party incurs a change in position, or is hindered in the preparation of its case, or has been prevented from taking some measure in support of its position” ( Valdes v. Marbrose Realty, 289 A.D.2d 28, 29, 734 N.Y.S.2d 24 [2001] ). Here, the 90–day period within which plaintiff could serve the State with a notice of claim terminated on September 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's claims of estoppel are unfounded ( see Baje Realty Corp. v. Cutler, 32 A.D.3d 307, 310, 820 N.Y.S.2d 57 [2006] ).

[85 A.D.3d 695] Although it may ultimately be found that defendant participates in the park's operation or retains some control...

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34 practice notes
  • FTBK Investor II LLC v. Genesis Holding LLC, 810163/2011
    • United States
    • United States State Supreme Court (New York)
    • 19 August 2014
    ...Holding bears the burden to demonstrate the merits of the proposed defenses through admissible evidence. See Anoun v. City of New York, 85 A.D.3d 694, 695, 926 N.Y.S.2d 98 (1st Dep't 2011) ; Guzman v. Mike's Pipe Yard, 35 A.D.3d 266, 825 N.Y.S.2d 480 (1st Dep't 2006) ; Lanpont v. Savvas Cab......
  • O'Halloran v. Metro. Transp. Auth.,
    • United States
    • New York Supreme Court Appellate Division
    • 22 August 2017
    ...to CPLR 3025(b) ] is freely given ‘absent prejudice or surprise resulting directly from the delay’ " ( Anoun v. City of New York, 85 A.D.3d 694, 694, 926 N.Y.S.2d 98 [1st Dept.2011], quoting Fahey v. County of Ontario, 44 N.Y.2d 934, 935, 408 N.Y.S.2d 314, 380 N.E.2d 146 [1978] ). "A party ......
  • Glynos v. Dorizas, Index No. 113984/2011
    • United States
    • United States State Supreme Court (New York)
    • 6 March 2015
    ...bears the burden to demonstrate the merits of the proposed Page 2 defenses through admissible evidence. See Anoun v. City of New York, 85 A.D.3d 694, 695 (1st Dept 2011); Guzman v. Mike's Pipe Yard, 35 A.D.3d 266, 266 (1st Dep't 2006); Lanpont v. Savvas Cab Corp., 244 A.D.2d at 210. While d......
  • The Bank of N.Y. Mellon Tr. Co. v. Munn, INDEX 850217/2016
    • United States
    • United States State Supreme Court (New York)
    • 12 April 2022
    ...directly from the delay" (see e.g. O'Halloran v Metropolitan Transp. Autk, 154 A.D.3d 83 [1st Dept 2017]; Anoun v City of New York, 85 A.D.3d 694 [1st Dept 2011]; see also Fahey v County of Ontario, 4-N.Y.2d 934, 935 [1978]). All that need be shown is that "the proffered amendment is not pa......
  • Request a trial to view additional results
34 cases
  • FTBK Investor II LLC v. Genesis Holding LLC, 810163/2011
    • United States
    • United States State Supreme Court (New York)
    • 19 August 2014
    ...Holding bears the burden to demonstrate the merits of the proposed defenses through admissible evidence. See Anoun v. City of New York, 85 A.D.3d 694, 695, 926 N.Y.S.2d 98 (1st Dep't 2011) ; Guzman v. Mike's Pipe Yard, 35 A.D.3d 266, 825 N.Y.S.2d 480 (1st Dep't 2006) ; Lanpont v. Savvas Cab......
  • O'Halloran v. Metro. Transp. Auth.,
    • United States
    • New York Supreme Court Appellate Division
    • 22 August 2017
    ...to CPLR 3025(b) ] is freely given ‘absent prejudice or surprise resulting directly from the delay’ " ( Anoun v. City of New York, 85 A.D.3d 694, 694, 926 N.Y.S.2d 98 [1st Dept.2011], quoting Fahey v. County of Ontario, 44 N.Y.2d 934, 935, 408 N.Y.S.2d 314, 380 N.E.2d 146 [1978] ). "A party ......
  • Glynos v. Dorizas, Index No. 113984/2011
    • United States
    • United States State Supreme Court (New York)
    • 6 March 2015
    ...bears the burden to demonstrate the merits of the proposed Page 2 defenses through admissible evidence. See Anoun v. City of New York, 85 A.D.3d 694, 695 (1st Dept 2011); Guzman v. Mike's Pipe Yard, 35 A.D.3d 266, 266 (1st Dep't 2006); Lanpont v. Savvas Cab Corp., 244 A.D.2d at 210. While d......
  • The Bank of N.Y. Mellon Tr. Co. v. Munn, INDEX 850217/2016
    • United States
    • United States State Supreme Court (New York)
    • 12 April 2022
    ...directly from the delay" (see e.g. O'Halloran v Metropolitan Transp. Autk, 154 A.D.3d 83 [1st Dept 2017]; Anoun v City of New York, 85 A.D.3d 694 [1st Dept 2011]; see also Fahey v County of Ontario, 4-N.Y.2d 934, 935 [1978]). All that need be shown is that "the proffered amendment is not pa......
  • Request a trial to view additional results

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