Fahey v. County of Ontario — 44 N.Y. 934

Majority

p. 934

Frank Fahey et al., Respondents, v County of Ontario et al., Defendants, and Sheriff of the County of Ontario, Appellant.

Argued May 5, 1978;

decided June 15, 1978

p. 935

APPEARANCES OF COUNSEL

David G. Retchless, County Attorney (Max Cohen of counsel), for appellant.

Michael R. McGee for respondent.

OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, without costs, appellant’s motion for leave to serve an amended answer granted, and the certified question answered in the negative.

Leave to amend the pleadings "shall be freely given” absent prejudice or surprise resulting directly from the delay. (CPLR 3025, subd [b]; Sindle v New York City Tr. Auth., 33 NY2d 293 , 296-297.) Since the respondents cannot claim here such prejudice or surprise, the court below abused its discretion as a matter of law in denying appellant’s motion to amend the answer to plead the Statute of Limitations. (Murray v City of New York, 43 NY2d 400 , 406.)

Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Cooke concur in memorandum.

Order reversed, etc.

Cases cited

Sindle v. New York City Transit Authority 33 NY2d 293 N.Y. 1973-12-28 at 296-297 p. 935
Murray v. City of New York 43 NY2d 400 N.Y. 1977-12-21 at 406 p. 935