McCaskey, Davies and Associates, Inc. v. New York City Health & Hospitals Corp.

• Decision Date: 11 May 1983
• Citation: 463 N.Y.S.2d 434,450 N.E.2d 240,59 N.Y.2d 755
• Court: New York Court of Appeals Court of Appeals
• Parties: , 450 N.E.2d 240 McCASKEY, DAVIES AND ASSOCIATES, INC., Appellant, v. NEW YORK CITY HEALTH & HOSPITALS CORPORATION, Respondent.

Page 434

463 N.Y.S.2d 434

59 N.Y.2d 755, 450 N.E.2d 240

McCASKEY, DAVIES AND ASSOCIATES, INC., Appellant, v. NEW YORK CITY HEALTH & HOSPITALS CORPORATION, Respondent.

Court of Appeals of New York.

May 11, 1983.

Joan M. Genchi, Farmingville, and Frederic Block, Smithtown, for appellant.

Frederick A.O. Schwarz, Jr., Corp. Counsel, New York City (William Barish, New York City, of counsel), for respondent.

OPINION OF THE COURT MEMORANDUM.

The order of the Appellate Division, 91 A.D.2d 516, 456 N.Y.S.2d 388, should be modified by reversing so much of it as granted defendant's motion for summary judgment dismissing the complaint and by denying defendant's motion for that relief, and, as so modified, affirmed.

Leave to amend the pleadings "shall be freely given" absent prejudice or surprise resulting directly from the delay (CPLR 3025, subd. Fahey v. County of Ontario, 44 N.Y.2d 934, 935, 408 N.Y.S.2d 314, 380 N.E.2d 146). Here the amendment sought to be pleaded was failure to comply with the contractual time limitation requiring commencement of action within six months of termination. There being nothing in the papers indicative of prejudice to or surprise of plaintiff, it was an abuse of discretion as a matter of law for Trial Term to deny defendant's motion to amend its answer.

It was, however, error for the Appellate Division to grant defendant's motion for summary judgment. Each party claimed the other had breached the contract; neither gave formal notice of termination. Whether the action was timely commenced turns, therefore, on whether in fact the contract was terminated and, if so, when. These questions present triable issues of fact barring summary judgment.

COOKE, C.J., and JASEN, JONES, WACHTLER, FUCHSBERG, MEYER and SIMONS, JJ., concur.

On review of submissions pursuant to rule 500.2(b) of the Rules of the Court of Appeals (22 NYCRR 500.2), order modified, with costs to plaintiff, in accordance with the memorandum herein and, as so modified, affirmed.