Ficorilli v. Thomsen

Jun 28, 1999
Versions:262 A.D.2d 602
692 N.Y.S.2d 673
1999 N.Y. App. Div. LEXIS 7649

—In an action to recover damages *603for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Suffolk County (Floyd, J.), dated August 12, 1998, which granted the defendant’s motion for leave to amend his answer to interpose an affirmative defense of medical emergency and denied their cross motion for summary judgment on the issue of liability.

Ordered that the order is affirmed, with costs.

The Supreme Court providently exercised its discretion in permitting the defendant to amend his answer to assert the affirmative defense of medical emergency, as the defense was meritorious and the plaintiffs failed to establish prejudice or surprise (see, CPLR 3025 [b]; McCaskey, Davies & Assocs. v New York City Health & Hosps. Corp., 59 NY2d 755; Fahey v County of Ontario, 44 NY2d 934, 935). The general rule is that the legal sufficiency or merits of proposed amendments will not be examined on a motion to amend unless the insufficiency or lack of merit is clear and free from doubt (see, Alejandro v Riportella, 250 AD2d 556; Sentry Ins. Co. v Kero-Sun, Inc., 122 AD2d 204; Norman v Ferrara, 107 AD2d 739).

Furthermore, the plaintiffs’ cross motion for summary judgment was properly denied since, after they made out a prima facie case for summary judgment, the defendant’s submissions raised a triable issue of fact as to whether the defendant experienced a sudden medical emergency and whether that medical emergency was unforeseen (see, State of New York v Susco, 245 AD2d 854; McGinn v New York City Tr. Auth., 240 AD2d 378; Thomas v Hulslander, 233 AD2d 567;Abish v Cetta, 155 AD2d 495; Aiello v Garahan, 91 AD2d 839, affd 58 NY2d 1078). Mangano, P. J., Santucci, Krausman, Florio and H. Miller, JJ., concur.