F.G.L. Knitting Mills, Inc. v. 1087 Flushing Property, Inc.

• Decision Date: 15 March 1993
• Citation: 191 A.D.2d 533,594 N.Y.S.2d 820
• Parties: F.G.L. KNITTING MILLS, INC., et al., Respondents, v. 1087 FLUSHING PROPERTY, INC., Appellant-Respondent, Dandee Creations, Ltd., Respondent-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 820

594 N.Y.S.2d 820

191 A.D.2d 533

F.G.L. KNITTING MILLS, INC., et al., Respondents, v. 1087 FLUSHING PROPERTY, INC., Appellant-Respondent Dandee Creations, Ltd., Respondent-Appellant.

Supreme Court, Appellate Division Second Department.

March 15, 1993.

Bivona & Cohen, P.C., New York City (Harold J. Derschowitz, of counsel), for appellant-respondent.

Bombara & McGlynn, New York City (Vivian R. Drohan and Martin M. McGlynn, of counsel), for respondent-appellant.

Gwertzman Pfeffer Lefkowitz Greenwald & Burman, New York City (Roberta Burman, of counsel), for respondents F.G.L. Knitting Mills, Inc. and A.M. Knitwear Corp.

Before BRACKEN, J.P., and EIBER, RITTER and SANTUCCI, JJ.

MEMORANDUM BY THE COURT.

In an action, inter alia, to recover damages for injuries sustained to property, 1087 Flushing Property, Inc. appeals from an order of the Supreme Court, Kings County (I. Aronin, J.), dated January 23, 1991, which denied its motion to amend its answer to assert an affirmative defense based upon "waiver of subrogation" and to dismiss the action, and Dandee Creations, Ltd., cross-appeals from so much of the same order as denied its cross motion for summary judgment.

ORDERED that the order is affirmed insofar as appealed and cross-appealed from, without costs or disbursements.

The court's denial of the motion of 1087 Flushing Property, Inc., to amend its answer was not an improvident exercise of discretion. This court has consistently maintained that "while leave to amend a pleading shall be freely granted (see, CPLR 3025[b], a motion to amend is committed to the broad discretion of the trial court (see, Edenwald Contr. Co. v City of New York, 60 NY2d 957 [471 N.Y.S.2d 55, 459 N.E.2d 164]; Kramer & Sons v Facilities Dev. Corp., 135 AD2d 942 ; Fulford v Baker Perkins, 100 AD2d 861 , and the resulting determination 'will not lightly be set aside' (Beuschel v Malm, 114 AD2d 569 " (Citrin v. Royal Ins. Co., 172 A.D.2d 795, 569 N.Y.S.2d 166, quoting Ross v. Ross, 143 A.D.2d 429, 532 N.Y.S.2d 573). In reviewing the exercise of its discretion, we look to those factors which the Supreme Court must consider in rendering its determination. The court must consider whether there has been a gross delay in asserting the amendment and, where the action has long been certified ready for trial, to rule with caution and circumspection (see, Pellegrino v. New York City Tr. Auth., 177 A.D.2d 554, 557, 576 N.Y.S.2d 154). Furthermore, " [t]he court will also note how long the amending party was aware of the facts upon which the motion was predicated, and whether it offers a reasonable excuse for its lengthy delay" (Pellegrino v. New York City Tr. Auth., supra, citing Balport Constr. Co. v. New York Tel. Co., 134 A.D.2d 309, 521 N.Y.S.2d 18; see also, Mawardi v. New York Prop. Ins. Underwriting Assn., 183 A.D.2d 758, 585 N.Y.S.2d 320). In this case, the appellant moved to amend its answer so to assert an affirmative defense two days prior to jury selection and over one year after the case had been placed upon the trial calendar. Compounding the...