Opinion
January 25, 1971
In an action to determine title to certain real property, defendants appeal from an order of the Supreme Court, Dutchess County, dated May 25, 1970, and entered in Orange County, which denied their motion to reargue and renew their prior motion for leave to amend their answer. Order reversed, without costs, and motion granted. Defendants may, if so advised, serve an amended answer within 20 days after entry of the order hereon. Defendants' motion for leave to reargue or renew their 1967 motion to amend their answer is in effect a motion for a rehearing on additional papers (see Gold v. Travelers Ins. Co., 263 App. Div. 817, 818). It is undisputed that this action, which had been granted a preference in 1967, has not yet been tried but has been adjourned for some three years after the denial of defendants' original motion to amend their answer so as to plead an affirmative defense of adverse possession. Plaintiffs, who have had three years' notice of defendants' desire to plead such defense, do not claim surprise or prejudice. In our opinion this change in circumstances suffices to permit amending the answer in the interests of justice, but the case should be tried forthwith. Hopkins, Acting P.J., Munder, Latham, Shapiro and Christ, JJ., concur.