Jenkins v. 115 Bruckner Car Wash, Inc. , 542 N.Y.S.2d 570 ( 1989 )

Order, Supreme Court, Bronx County (Barry Salman, J.), entered September 7, 1988, which granted reargument and adhered to the original determination of said court entered on June 6, 1988 denying plaintiff’s motion for an order precluding any testimony from the defendant Juan Menjiber and a witness Manuel Herrera and granted the cross motion of the defendant 115 Bruckner Car Wash, Inc. for an order amending its answer to deny the defendant Menjiber was its employee, unanimously modified, on the law, the facts and in the exercise of discretion to grant the cross motion on condition that defendant pay the sum of $500 to plaintiff, and otherwise affirmed, without costs. In the event that the sum of $500 is not paid within 20 days of the date of this court’s order, the cross motion is denied.

The appeal from the aforesaid order of June 6, 1988 is dismissed, without costs and without disbursements, as having been subsumed in the appeal from the order entered on September 7, 1988.

This is an action for personal injuries. Plaintiff alleges that on or about November 15, 1986 he brought his car to the defendant’s car wash and that while he was there, defendant’s employee Menjiber, in the course of his employment, drove another car negligently, striking plaintiff’s car and plaintiff. In its answer defendant 115 Bruckner admitted that Menjiber was its employee and that in the course of his employment he drove a car which came into contact with plaintiff’s car.

At a deposition held in February 1988 the defendant 115 Bruckner denied that Menjiber was its employee. Plaintiff’s motion to preclude and defendant’s cross motion to amend followed. While plaintiff claims that he is prejudiced by the amendment, no prejudice is shown and the amendment should be freely allowed. (CPLR 3025 [b].) We deem it appropriate, however, that the amendment be conditioned on a payment of $500 to the plaintiff. Concur — Kupferman, J. P., Ross, Carro, Ellerin and Smith, JJ.