JAMES-SMITH v. ROTTENBERG


32 A.D.2d 792 (1969)

Beatrice James-Smith, Appellant, v. Meshulem Rottenberg, Respondent

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

June 9, 1969


Order reversed, on the law and the facts, with $10 costs and disbursements, and motion denied.

Respondent's answer, which was served on June 14, 1966, contained general denials. By notice of motion dated August 30, 1968 he moved to amend his answer by setting forth the affirmative defenses of fraud and illegality. At this time the case had reached the top of the Trial Calendar. Appellant's case was prepared on the basis of an answer containing a general denial; she is old and in ill health and all the facts which might form the basis of the affirmative defenses occurred prior to the making of the contract and were or should have been known to respondent at least by the time the complaint was served. Although we are mindful of the liberal policy to be followed with respect to motions to amend (see CPLR 3025, subd. [b]), we are of the opinion that it was an improvident exercise of discretion, resulting in prejudice to appellant, to permit the amendment.


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