Dinsenbacher v. Dowis

Mar 1, 2004
Versions:5 A.D.3d 347
772 N.Y.S.2d 532

In an action for a divorce and ancillary relief, the defendant appeals, as limited by her brief, from so much of an order of the Supreme Court, Suffolk County (Kitson, J.), dated March 18, 2003, as denied her motion for leave to serve an amended answer to add a counterclaim and to strike the complaint pursuant to CPLR 3126 (3).

Ordered that the order is modified, on the facts, by deleting the provision thereof denying that branch of the motion which was for leave to serve an amended answer and substituting therefor a provision granting that branch of the motion; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.

Leave to a amend a pleading should be freely given (see CPLR 3025 [b]). Although the determination of whether to grant leave is generally within the discretion of the Supreme Court, in this case, the Supreme Court improvidently exercised its discretion in denying that branch of the defendant’s motion (see Levine v Levine, 286 AD2d 423 [2001]). Under the circumstances of this case, the fact that the defendant waited for some period of time after the commencement of the divorce action to seek leave to amend her answer to include a counterclaim seeking a declaration that the marriage was void did not justify the denial of that branch of the motion (see Lechtrecker v Lechtrecker, 176 AD2d 284 [1991]; Brandt v Brandt, 149 AD2d 646 [1989]; Merino v Merino, 55 Misc 2d 1098 [1968]).

*348The defendant’s remaining contention is without merit. Florio, J.P., Krausman, Schmidt and Townes, JJ., concur.