Opinion
March 23, 1987
Appeal from the Supreme Court, Westchester County (Delaney, J.).
Ordered that the order is affirmed insofar as appealed from with costs.
Based on the facts of this case, Special Term did not abuse its discretion in granting the defendant leave to amend his answer to assert the affirmative defense of bankruptcy. This defense was not available to the defendant at the time the original answer was served and it does not appear from the record that the plaintiff will be unduly prejudiced by the amendment (see, CPLR 3025 [b]). Moreover, based on these facts, and more particularly the alleged knowledge of the plaintiff as to the pendency of the bankruptcy proceeding and his alleged agreement not to be listed as a creditor, the proposed bankruptcy defense is not palpably insufficient as a matter of law (see, Norman v. Ferrara, 107 A.D.2d 739, 740; Island Cycle Sales v. Khlopin, 126 A.D.2d 516). Mollen, P.J., Thompson, Rubin and Kunzeman, JJ., concur.