Prote Contracting Co., Inc. v. Board of Educ. of City of New York
Decision Date | 28 April 1998 |
Parties | , 1998 N.Y. Slip Op. 3784 PROTE CONTRACTING CO., INC., Plaintiff-Respondent, v. BOARD OF EDUCATION OF the CITY OF NEW YORK, etc., Defendant-Appellant. |
Court | New York Supreme Court — Appellate Division |
Sheldon Feinstein, for Plaintiff-Respondent.
Jane S. Earle, for Defendant-Appellant.
Before LERNER, P.J., and NARDELLI, WALLACH, WILLIAMS and SAXE, JJ.
Order, Supreme Court, New York County (Jane Solomon, J.), entered February 14, 1997, which denied defendant's motion to amend its answer pursuant to CPLR 3025(b) to assert an additional counterclaim, to compel additional disclosure from plaintiff and to strike plaintiff's note of issue, unanimously modified, on the law, the facts and in the exercise of discretion, to grant that branch of defendant's motion seeking leave to amend its answer to add a counterclaim, and that branch seeking to strike the note of issue, and to permit the parties to seek additional discovery on issues related to the new counterclaim, and otherwise affirmed, without costs.
Defendant should have been permitted to amend its answer to include an additional counterclaim for the recovery of monies allegedly paid in error to plaintiff pursuant to a change order that defendant claims, and has claimed for some time, was erroneously issued by plaintiff for work that was included in the original contract specifications. Leave to amend pleadings is generally freely granted (Murray v. City of New York, 43 N.Y.2d 400, 404-405, 401 N.Y.S.2d 773, 372 N.E.2d 560) and we perceive no reason why the present application for leave should have been treated as exceptional. This is especially so since plaintiff, in opposing defendant's motion to amend, made no showing that permitting the proposed counterclaim would be prejudicial (see, City of New York v. Cross Bay Contracting Corp., 235 A.D.2d 10, 14, 662 N.Y.S.2d 462).
The note of issue is stricken so that the parties may take further discovery, including a further deposition of plaintiff's president, relative to the newly interposed counterclaim concerning the change order.
As to the refusal by plaintiff's president to answer certain questions at his deposition, to the extent these questions concerned the change order, plaintiff is directed to answer same; to the extent the questions related to other topics, we uphold the order declining to make a direction that plaintiff's president answer them, and leave to ...
To continue reading
Request your trial-
Stajano v. United Tech. Corp. of New York City, 2002 NY Slip Op 30112(U) (N.Y. Sup. Ct. 10/8/2002)
...party. See Abdelnabi v. New York City Transit Authority, 273 A.D.2d 114 (1st Dept. 2000): Prote Contracting Co., Inc. v. Board of Education of the City of New York, 249 A.D.2d 178 (1st Dept. 1998). Plaintiffs complain of the passage of more than 30 years since the happening of the within ac......
-
Santos v. Townsend Ave. Enters. Ltd.
...lacking in good faith and merit. See, Fohey v. Ontario County, 44 N.Y.2d 934 (1978 ); Prote Contracting. Co., Inc. v. Board of Education of the City of New York, 672 N.Y.S.2d 109 (1st Dept. 1998); Stroock & Stroock & Lavan v. Beltramini, 550 N.Y.S.2d 337 (1st Dept. 1990); Thompson v. Cooper......
-
Sheppard v. Blitman/Atlas Bldg. Corp.
...to procure insurance. Leave to amend pleadings should be freely granted absent prejudice or surprise (Prote Contr. Co, Inc. v Bd. of Educ. of the City of New York, 249 A.D.2d 178). In the absence of prejudice, mere delay is insufficient to defeat the amendment (17 Vista Fee Assocs. v Teache......
-
Walker v. Brienza
...lacking in good faith and merit. See, Fohey v. Ontario County, 44 N.Y,2d 934 (1978 ); Prote Contracting. Co., Inc. v. Board of Education of the City of New York, 672 N.Y.S.2d 109 (1st Dept. 1998). See also, Sclafani v. City of New York, 706 N.Y.S.2d 129 (2d Dept. 2000)(while a Court has bro......