Opinion
April 28, 1998
Appeal from the Supreme Court, New York County (Jane Solomon, J.).
Defendant should have been permitted to amend its answer to include an additional counterclaim for the recovery of monies allegedly paid in error to plaintiff pursuant to a change order that defendant claims, and has claimed for some time, was erroneously issued by plaintiff for work that was included in the original contract specifications. Leave to amend pleadings is generally freely granted ( Murray v. City of New York, 43 N.Y.2d 400, 404-405) and we perceive no reason why the present application for leave should have been treated as exceptional. This is especially so since plaintiff, in opposing defendant's motion to amend, made no showing that permitting the proposed counterclaim would be prejudicial ( see, City of New York v. Cross Bay Contr. Corp., 235 A.D.2d 10, 14).
The note of issue is stricken so that the parties may take further discovery, including a further deposition of plaintiff's president, relative to the newly interposed counterclaim concerning the change order.
As to the refusal by plaintiff's president to answer certain questions at his deposition, to the extent these questions concerned the change order, plaintiff is directed to answer same; to the extent the questions related to other topics, we uphold the order declining to make a direction that plaintiff's president answer them, and leave to the trial court the issue of whether plaintiff should be precluded from offering evidence on such matters.
Concur — Lerner, P.J., Nardelli, Wallach, Williams and Saxe, JJ.