DE FABIO v. NADLER RENTAL SERV., INC.


27 A.D.2d 931 (1967)

Nick De Fabio, Jr., Respondent, v. Nadler Rental Service, Inc., et al., Defendants, and Margaret Associates, Inc., Defendant and Third-Party Plaintiff-Appellant. Eugene Held, Defendant and Third-Party Plaintiff; General Accident Fire and Life Assurance Corp., Ltd., Third-Party Defendant

Appellate Division of the Supreme Court of the State of New York, Second Department.

April 3, 1967


Order dated November 30, 1966 affirmed, without costs.

Appeal from order dated December 6, 1966, dismissed, without costs. No appeal lies from an order denying reargument.

The lengthy delay of defendant Margaret Associates, Inc., in making the motion to amend its answer so as to deny making a leasing agreement precludes this court from granting relief (Sarullo v. Newstand Realty Corp., 2 A.D.2d 854 [2d Dept. 1956]; Luback v. Hirsch, 232 App. Div. 691 [2d Dept. 1931]). The motion was not made until almost a year after the death of defendant Held, the president of appellant, Margaret Associates, Inc., although it had knowledge since at least May, 1965 of the supposed defect in its answer. Despite the general rule in favor of free amendment of the pleadings (CPLR 3025, subd. [b]), where amendment would result in substantial prejudice to one of the parties because of something which has happened in the interim between the original pleading and the application to amend, and such harm could not be cured by the court, it would be an improvident exercise of discretion to allow such amendment (Washington Life Ins. Co. v. Scott, 119 App. Div. 847 [1st Dept. 1907]; Lentini v. St. Vincent's Hosp., 19 A.D.2d 652 [2d Dept. 1963]; 3 Weinstein-Korn-Miller, N. Y. Civ. Prac., par. 3025.16 [1966]). Where the party who wishes to amend has or should have knowledge of the facts which he wishes to put in his later pleadings, but refrains from moving to amend for an inexcusably long period of time, his motion will be denied because of gross laches (Jennings v. Perkins, 277 App. Div. 1143 [2d Dept. 1950]; Loureiro v. Long Is. R. R. Co., 22 A.D.2d 763 [2d Dept. 1964]).


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