Llama v. Mobil Service Station

Jun 14, 1999
Versions:

—In an action to recover damages for personal injuries, etc., the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Queens County (Milano, J.), dated December 5, 1997, as denied their motion for leave to serve an amended complaint asserting a cause of action for breach of warranty.

Ordered that the order is reversed insofar as appealed from, with costs, the motion is granted, the amended complaint is deemed served, and the defendant’s time to answer is enlarged to 20 days after service upon it of a copy of this decision and order with notice of entry.

The Supreme Court erred in its determination that the plaintiffs’ proposed amended complaint was untimely. The plaintiffs’ breach of warranty claim arose from the same occurrences as gave rise to their other timely claims. Accordingly, the plaintiffs’ warranty claim is deemed interposed as of the time the claims in the original pleading were interposed (CPLR 203 [f]; see, Banfi Prods. Corp. v Gentile, 236 AD2d 348; Curiale v Ardra Ins. Co., 223 AD2d 445; Howard v State of New York, 175 AD2d 634).

Leave to serve an amended pleading should be freely granted in the absence of prejudice to the nonmoving party (see, Watson v Getman, 260 AD2d 472; Huntington v Trotta Auto Wreckers, 257 AD2d 647; Weeden v Corzo Constr. Co., 240 AD2d 732). Under the circumstances of this case, and in the absence of any demonstrable prejudice, the plaintiffs’ motion should have been granted (see, Berkun v National Health Resources, 255 AD2d 476; Weitzenberg v Nassau County Dept. of Recreation & Parks, 249 AD2d 538). S. Miller, J. P., Sullivan, Friedmann and Feuerstein, JJ., concur.