Opinion
January 21, 1982
Appeal from an order of the Supreme Court at Special Term (Kahn, J.), entered September 28, 1981 in Albany County, which granted defendants' motion for leave to serve an amended answer to plaintiff's complaint. Plaintiff commenced this action against defendant attorneys to recover for damages allegedly sustained by its predecessor in interest, Associated Industries of New York State, Inc., as settlor under an agreement and declaration of trust dated December 21, 1957. Basically, plaintiff asserts that its damages resulted from the performance of certain professional services by defendants on behalf of the trustees of the subject trust which services constituted a conflict of interest because defendants had simultaneously represented plaintiff's predecessor in interest. On February 24, 1981, issue was joined by service of an answer on behalf of defendant Costello, Cooney Fearon, and when plaintiff subsequently obtained jurisdiction over defendant Charles E. Cooney, Jr., an amended answer was served on April 22, 1981 on behalf of all of the defendants. This amended answer was rejected by plaintiff, and consequently, an answer was served on behalf of Charles E. Cooney, Jr., on May 12, 1981. With these circumstances prevailing, defendants moved for an order granting them leave to serve an amended answer in the same manner and form as the amended answer previously rejected by plaintiff. Special Term thereafter granted their motion in the order from which plaintiff now appeals. We hold that the challenged order should be affirmed. Most significantly, plaintiff has made no showing that it would be prejudiced by the service of an amended answer, nor is the proposed amendment insufficient on its face. Moreover, it is readily understandable that service of an amended answer might be necessary under the unusual circumstances presented here, wherein the initial complaint and the answer of defendant Costello, Cooney Fearon had already been served before jurisdiction was obtained over the individual defendant Charles E. Cooney, Jr. Such being the case, the order of Special Term should not be disturbed ( Murray v. City of New York, 43 N.Y.2d 400). Order affirmed, with costs. Mahoney, P.J., Sweeney, Kane, Main and Casey, JJ., concur.