HUNT v. GODESKY


189 A.D.2d 854 (1993)

David G. Hunt, Jr., Appellant, v. Mary T. Godesky, Respondent

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

January 25, 1993


Ordered that the appeal from the judgment dated May 25, 1990, is dismissed as that judgment was superseded by the order dated June 25, 1990, made upon reargument; and it is further,

Ordered that the order dated June 25, 1990, is affirmed insofar as reviewed; and it is further,

Ordered that the defendant is awarded one bill of costs.

As a general rule, motions for leave to serve amended pleadings should be liberally granted unless the rights of the parties are substantially prejudiced (see, Cutwright v Central Brooklyn Urban Dev. Corp., 127 A.D.2d 731). Where the party opposing a motion to serve an amended pleading cannot demonstrate prejudice resulting directly from the delay, denial of the motion has been deemed to be an improper exercise of the court's discretion (see, Murray v City of New York, 43 N.Y.2d 400). In this case, the plaintiff could not claim prejudice because he had full knowledge of all the facts giving rise to the affirmative defense raised by the defendant in her amended answer.

Furthermore, the affirmative defense of collateral estoppel was properly asserted by the defendant in her amended answer. A judicial determination entered upon default fixing the value of a professional's services is a bar to an action to recover damages for malpractice by a defaulting defendant against that professional for malpractice in rendering those services (see, Gates v Preston, 41 N.Y. 113; Blair v Bartlett, 75 N.Y. 150; Tantillo v Giglio, 156 A.D.2d 664).


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