Schwartz v. Sar Corp. , 195 N.Y.S.2d 819 ( 1959 )

In an action to recover damages for personal injuries alleged to have been caused by the negligent operation of a motor vehicle, the appeal is from an order (1) granting respondent’s motion for summary judgment striking out the answer (Rules Civ. Prae., rule 113), and (2) denying appellants’ motion for permission to serve an amended answer. Order reversed, with $10 costs and disbursements, respondent’s motion for summary judgment denied, and appellants’ motion for permission to serve an amended answer granted. The amended answer is to be served, if appellants be so advised, within 10 days after the entry of the order hereon. In our opinion, the proof submitted in support of the motion was not sufficient, as a matter of law, to warrant the directing of judgment in favor of respondent. No prejudice will result to respondent from the service of an amended answer denying a paragraph of the complaint which appellants inadvertently failed to deny in their original answer. Nolan, P. J., Beldoek, Ughetta, Hallinan and Kleinfeld, JJ., concur. [19 Misc 2d 660.]