Opinion
Submitted April 27, 2001
May 21, 2001
In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Dutchess County (Pagones, J.), dated August 22, 2000, which denied his motion for leave to amend his answer to interpose an affirmative defense of medical emergency.
O'Connor, McGuinness, Conte, Doyle Oleson, White Plains, N Y (Dennis T. Doyle, Julie Kocaba, and Montgomery L. Effinger of counsel), for appellant.
Ostertag O'Leary, Poughkeepsie, N.Y. (Robert L. Ostertag of counsel), for respondent.
Before: FRED T. SANTUCCI, J.P., ANITA R. FLORIO, ROBERT W. SCHMIDT, THOMAS A. ADAMS, JJ.
DECISION ORDER
ORDERED that the order is reversed, with costs, the motion is granted, and the defendant's amended answer is deemed served.
Motions for leave to amend pleadings are to be liberally granted absent prejudice or surprise resulting directly from the delay ( see, CPLR 3025[b]; McCaskey, Davies Assoc. v. New York City Health Hosps. Corp., 59 N.Y.2d 755, 757; Fahey v. County of Ontario, 44 N.Y.2d 934, 935), unless the amendment is palpably insufficient or clearly without merit ( see, Alejandro v. Riportella, 250 A.D.2d 556; Sentry Ins. Co. v. Kero-Sun, Inc., 122 A.D.2d 204; Norman v. Ferrara, 107 A.D.2d 739). The Supreme Court improvidently exercised its discretion in denying the defendant's motion for leave to amend his answer to assert the affirmative defense of medical emergency, as that defense is not clearly without merit, and the plaintiff failed to establish prejudice or surprise ( see, Ficorilli v. Thomsen, 262 A.D.2d 602; Alejandro v. Riportella, supra).