Babi v. David

Dec 19, 2006
Versions:35 A.D.3d 266
824 N.Y.S.2d 902

Order, Supreme Court, Bronx County (Norma Ruiz, J.), entered January 12, 2006, which denied defendant’s motion to amend its answer to assert a new affirmative defense, unanimously affirmed, without costs.

Defendant’s unsupported motion was insufficient as a matter of law. Motions to amend pleadings are to be liberally granted (CPLR 3025 [b]), absent prejudice or surprise, but such leave should “not be granted upon mere request, without appropriate substantiation” (Brennan v City of New York, 99 AD2d 445, 446 [1984]). These moving papers consisted solely of a four-page attorney’s affirmation, without an affidavit of a person having personal knowledge, or any other evidence of a viable defense, and thus lacked probative value (see Marinelli v Shifrin, 260 AD2d 227, 229 [1999]). Defendant’s attempt to salvage an inadequate set of moving papers by advancing new arguments in its reply affirmation was improper and not entitled to any consideration by the motion court (see Lumbermens Mut. Cas. Co. v Morse Shoe Co., 218 AD2d 624 [1995]). Concur—Andrias, J.P., Saxe, Marlow, Nardelli and Williams, JJ.