Kell v. Henderson
| Decision Date | 03 June 1966 |
| Citation | 26 A.D.2d 595,270 N.Y.S.2d 552 |
| Parties | Stephanie M. KELL, an Infant, by Stanley V. Kell et al., Respondents, v. Albert B. HENDERSON et al., Appellants. |
| Court | New York Supreme Court — Appellate Division |
Crapser & Kirsch, Vincent F. Kirsch, Massena, for appellants.
John B. Leonard, Ogdensburg, for respondents.
Before GIBSON, P.J., and HERLIHY, REYNOLDS, TAYLOR and AULISI, JJ.
Appellants moved for leave to amend their answer to plead the Ontario guest statute as an affirmative defense in this personal injury action arising out of an automobile accident which occurred in the State of New York. The incident involved residents and domiciliaries of Ontario, Canada.
Special Term correctly denied the motion. In our view Babcock v. Jackson, 12 N.Y.2d 473, 240 N.Y.S.2d 743, 191 N.E.2d 279, 95 A.L.R.2d 1, is inapplicable here because Babcock (supra) was not intended to and did not change the established law of the State of New York that a guest has a cause of action for personal injuries against a host in an accident occurring within this State whether those involved are residents or domiciliaries of this State or not. The very seriously injured plaintiff in this case could be prejudiced by the inclusion in the pleadings of this unwarranted affirmative defense.
Order affirmed, with costs.
I concur with the majority statement herein and would further affirm the order of Special Term upon the ground that allowing the defendant to plead this defense at this time would be prejudicial to the infant plaintiff herein. The matter of prejudice was not discussed by Special Term but is an element to be considered on a motion to amend a pleading.
It appears that the original answer in this case was served by the defendants on or about March 5, 1964; the case was placed on the court calendar on April 7, 1964; it was reached for trial at the January 1965 term but was put over the term because further medical treatment was indicated; that at the January 1965 term a pre-trial conference was had and a substantial offer was tendered by the defendants herein; that all necessary examinations before trial have been held herein prior to this motion; that the notice of motion to amend the pleading was dated March 23, 1965, More than one year after the service of the original answer by defendants' attorneys.
A motion to amend a pleading is ordinarily granted, absent any prejudice to the opposing party, even if there has been a long delay and the relevant facts were known from the beginning. (See 3 Weinstein-Korn-Miller, §§ 3025.15, 3025.16, and Hirsch v. Flick, 17 A.D.2d 961, 233 N.Y.S.2d 916.) However, where the granting of such a motion is prejudicial to the opposing party, the application should be denied.
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Casey v. Manson Const. & Engineering Co.
...upon this decision is found in 63 Columbia L.Rev. 1212 et seq.5 Kell v. Henderson, 47 Misc.2d 992, 263 N.Y.S.2d 647, aff'd 26 A.D.2d 595, 270 N.Y.S.2d 552 (1966), is illustrative of the confusion created by Dym v. Gordon, supra. The facts in the Kell case were the reverse of those in Babcoc......
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Abendschein v. Farrell
...664, and Zelinger v. State Sand & Gravel Co., supra.14 Wilcox v. Wilcox (1965), 26 Wis.2d 617, 133 N.W.2d 408; Kell v. Henderson (1966), 26 A.D.2d 595, 270 N.Y.S.2d 552, holding that New York's law rather than Ontario's governs a lawsuit between persons who were residents and domiciliaries ......
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Paul v. National Life
...N.Y.2d 473, 240 N.Y.S.2d 743, 191 N.E.2d 279 (1963), and Kell v. Henderson, 47 Misc.2d 992, 263 N.Y.S.2d 647 (1965), aff'd, 26 App.Div.2d 595, 270 N.Y.S.2d 552 (1966), are aptly discussed by the Supreme Court of In Babcock, an automobile guest sued her host in New York for injuries sustaine......