FISHER v. BRAUN

Ordered that the order is modified, on the law, by deleting the provision thereof denying that branch of the defendant's motion which was for leave to amend the answer, and substituting therefor a provision granting that branch of the motion; as so modified, the order is affirmed, with costs payable to the defendant.

The Supreme Court improvidently exercised its discretion in denying that branch of the defendant's motion which was for leave to amend her answer to deny ownership of the premises at the time the accident occurred. Pursuant to CPLR 3025 (b), leave to amend pleadings is to be freely given unless the proposed amendment is palpably improper or would cause substantial prejudice to the opposing party (see, Edenwald Contr. Co. v City of New York, 60 N.Y.2d 957; Matter of Ward v Bennett, 214 A.D.2d 741; Hunt v Godesky, 189 A.D.2d 854; O'Neal v Cohen, 186 A.D.2d 639; Quiros v Polow, 135 A.D.2d 697). Since the proposed amendment in this case was supported by documentary evidence, and the plaintiffs neither alleged nor demonstrated any prejudice as a result thereof, the defendant's request for leave to amend should have been granted.

However, the denial of that branch of the motion which was for summary judgment dismissing the complaint based on the proposed amendment was proper. While liability for a defective condition generally does not extend to a prior owner of the premises (see, e.g., James v Stark, 183 A.D.2d 873; Banks v Banks, 121 A.D.2d 421), an exception exists "where a dangerous condition existed at the time of the conveyance [by the former owner] and the new owner has not had a reasonable time to discover the condition, if it was unknown, and to remedy the condition once it is known" (Bittrolff v Ho's Dev. Corp., 77 N.Y.2d 896, 898; see, Mullen v Zoebe, Inc., 205 A.D.2d 597; Farragher v City of New York, 26 A.D.2d 494, affd 21 N.Y.2d 756). Under the circumstances of this case, and in view of the limited disclosure conducted, questions exist with regard to whether the alleged defective condition was present at the time of the conveyance and, if so, whether the new owners of the premises had a reasonable opportunity prior to the accident to remedy that condition (see, Slomin v Skaarland Constr. Corp., 207 A.D.2d 639; Brown v O'Connor, 193 A.D.2d 1088; Young v Hanson, 179 A.D.2d 978). Accordingly, resolution of these issues must await further discovery or a trial.