Debicki v. Schultz

Feb 3, 1995
Versions:212 A.D.2d 988
623 N.Y.S.2d 456
1995 N.Y. App. Div. LEXIS 1852

—Order unanimously reversed on the law with costs and motion granted without prejudice in accordance with the following Memorandum: Defendant appeals *989from an order that denied his motion for leave to amend his answer in this personal injury action to assert the defense of discharge in bankruptcy. The proposed defense is based on an order of Bankruptcy Court that discharged defendant from any debt or liability based on plaintiff’s personal injury action. In opposing the amendment, plaintiff argued that the order of Bankruptcy Court was a nullity because defendant purported to serve plaintiff in that proceeding by attempting (unsuccessfully, plaintiff contends) to serve the attorney representing her in the personal injury action.

We conclude that Supreme Court should have granted without prejudice defendant’s motion for leave to amend the answer to assert the defense of discharge in bankruptcy. Leave to amend "shall be freely given” (CPLR 3025 [b]). The defense is based upon a presumptively valid order of Bankruptcy Court, and we cannot conclude that the defense is patently lacking in merit. Defendant’s motion for leave to amend is granted without prejudice to plaintiff’s moving to dismiss the defense based upon a proper evidentiary showing that defendant failed to acquire personal jurisdiction over plaintiff in the bankruptcy proceeding. (Appeal from Order of Supreme Court, Erie County, Wolf, Jr., J.—Amend Answer.) Present—Denman, P. J., Balio, Lawton, Callahan and Doerr, JJ.