Citation Numbers: 12 Misc. 2d 619
Judges: Friedman
Filed Date: 10/31/1957
Status: Precedential
Modified Date: 2/5/2022
One defendant moves for an order permitting it to serve an amended answer and include a cross complaint therein. Plaintiff objects to the proposed amendment, while the codefendant objects to so much of the motion as prays for leave to serve the cross complaint. Each form of relief requested and the objection thereto will be discussed separately. The action is brought to recover for personal injuries allegedly sustained by the plaintiff as a result of the claimed negligence of the defendants. In paragraph (14) of plaintiff’s complaint it was alleged in substance that at the time of the accident the said plaintiff “ was rightfully and law
The moving defendant now contends that through a mistaken interpretation of the facts contained in their file, this answer was served admitting that the plaintiff was a passenger on said motor vehicle with the knowledge, permission and consent of one of the defendants. They desire to amend said answer so as to withdraw such admission and to substitute in place thereof a limited admission to the effect that plaintiff was a passenger on said vehicle with the knowledge of the defendant George Yurkin, but without his permission or consent. The answer referred to is a verified one, sworn to by the treasurer of the moving defendant corporation. However, in support of the present motion, defendant submits an affidavit by one of the attorneys associated with the attorney of record for the defendant, who says that he makes the affidavit upon information and belief, and who states further that he is not submitting an affidavit of the person who verified the original answer, ‘ ‘ because your deponent feels that these matters are points of legal implication, for which the attorney, your deponent, was the responsible party in connection with the drafting of an answer. ’ ’ Nowhere in the moving papers is there any statement on the part of the person who verified the original answer to the effect that the facts which said person admitted under oath were true, are not the real facts, and the failure to submit such an affidavit is most significant.
In Hernstat v. Sab Holding Corp. (243 App. Div. 808) the Appellate Division in this department reversed an order which granted a similar motion, characterizing such granting as “ improvident.”
In Ehrlich v. Strand Cleaners & Dyers Corp., decided by Mr. Justice Curr, Supreme Court, Kings County, and reported in the New York Law Journal of April 10,1943 (p. 1414, col. 7), defendant sought to amend its answer to deny ownership, operation and control of the store premises where plaintiff had been injured, after having previously admitted such ownership, operation and control. The motion was denied, the court stating “ A motion to amend an answer in a way that changes totally a major part of the defense, casting thereby the burden
In Shrubsall v. City of New York (183 Misc. 424), the Supreme Court, Special Term, Queens County, denied a motion made by the city to amend its answer so as to bring certain matters into issue which had not previously been denied in the defendant’s answer.
Accordingly, so much of the motion as seeks to amend the answer to the plaintiff’s complaint is denied. It should be here pointed out that plaintiff has given up his right to an examination before trial by reason of the admission herein, and in view of the new statement of readiness rule, plaintiff may not now conduct such an examination before trial.
As to that part of the motion wherein defendant asks leave to assert a cross complaint as against another defendant, the motion is granted. The codefendant who opposes this relief shows no prejudice and its opposition to that phase of the motion to the effect that there is no legal liability, may not be asserted at this time. The motion to amend the answer so as to assert a cross complaint against the codefendant is granted without prejudice to the right of said codefendant to attack said cross complaint after its service, if said codefendant be so advised.
Settle order on notice to all parties.