Dowling v. Sterling Drug, Inc. , 295 N.Y.S.2d 557 ( 1968 )

Appeal from an order of the Supreme Court at Special Term, entered July 3, 1968 in New York County, which denied a motion by defendant for an order for leave to serve an amended answer.

Memorandum. Order entered July 3,1968, denying leave to serve an amended answer reversed on the law and the facts and the motion granted without costs or disbursements.

Special Term denied defendant’s application for leave to serve an amended answer pleading statutes of Connecticut in regard to limitations. Denial was predicated on a belief that a prior application for the same relief had been denied at Special Term and affirmed by this court. The prior motion was one for summary judgment on the ground that the action was time barred. Special Term denied the motion on the ground that the date when the cause of action accrued was in dispute. This court affirmed, without opinion (29 A D 2d 738). In addition to the grounds advanced by Special Term, appellant’s brief reveals that it was in some doubt as to which of two statutes was applicable and that it was also relying on one not pleaded. There was no ruling that an amendment would not be allowed. Special Term also placed reliance on the ground that the application was tardy. In view of the fact that defendant has been asserting limitations from the very outset of the action, this application cannot be so considered.