answer to assert defense in New York

2009Corp., 59 NY2d 755 [1983]), and the proposed affirmative defense was neither devoid of merit nor palpably insufficient as a matter of law (see Ingrami, 45 AD3d at 808 ; Hill, 42 AD3d at 433 ), defendant should have been granted leave to amend its answer (see Ingrami, 45 AD3d at 808 [a defendant who has failed to assert a defense set forth in CPLR 3211 (a) (5) both in a motion to dismiss and an answer (see CPLR 3211 [e]) may nonetheless be granted leave to amend the answer to assert such defense under appropriate circumstances]).

2009Corp., 59 NY2d 755 [1983]), and the proposed affirmative defense was neither devoid of merit nor palpably insufficient as a matter of law (see Ingrami, 45 AD3d at 808 ; Hill, 42 AD3d at 433 ), defendant should have been granted leave to amend its answer (see Ingrami, 45 AD3d at 808 [a defendant who has failed to assert a defense set forth in CPLR 3211 (a) (5) both in a motion to dismiss and an answer (see CPLR 3211 [e]) may nonetheless be granted leave to amend the answer to assert such defense under appropriate circumstances]).

2005Accordingly, leave to amend the answer to assert this defense should have been granted (see Santori v Met Life, 11 AD3d 597 [2004]; Goldstein v St.

2005The branch of the appellant’s motion pursuant to CPLR 3211 (a) (2) and (3) which was to dismiss the first cause of action was procedurally barred by the single-motion rule (see CPLR 3211 [e]; Lee v Liberty Lines Tr., 260 AD2d 549 [1999]; B.S.L.

2005John’s Episcopal Hosp., 267 AD2d 426 [1999]).

2004These are generally the type of discretionary actions to which governmental immunity would attach, and plaintiff does not seriously oppose this defendant’s motion to amend the answer to assert such defense (see Dorsey v City of Poughkeepsie, 275 AD2d 386 [2d Dept 2000]; Maloney v Board of Educ. of City of Buffalo, 177 AD2d 1012 [4th Dept 1991], lv denied 79 NY2d 912 [1992]).

2004These are generally the type of discretionary actions to which governmental immunity would attach, and plaintiff does not seriously oppose this defendant’s motion to amend the answer to assert such defense (see Dorsey v City of Poughkeepsie, 275 AD2d 386 [2d Dept 2000]; Maloney v Board of Educ. of City of Buffalo, 177 AD2d 1012 [4th Dept 1991], lv denied 79 NY2d 912 [1992]).

2004These are generally the type of discretionary actions to which governmental immunity would attach, and plaintiff does not seriously oppose this defendant’s motion to amend the answer to assert such defense (see Dorsey v City of Poughkeepsie, 275 AD2d 386 [2d Dept 2000]; Maloney v Board of Educ. of City of Buffalo, 177 AD2d 1012 [4th Dept 1991], lv denied 79 NY2d 912 [1992]).

2002In Boulay v Olympic Flame ( 165 AD2d 191, 194 ), a unanimous Court wrote that “we agree with defendant that the Addesso holding does not affect the principle which permits the assertion of lack of personal jurisdiction in an answer amended as of right pursuant to CPLR 3025 (a) (but see, DeFilippis v Perez, 148 AD2d 490, 491-492 ).” The Court nonetheless found that Addesso was applicable, but only because the jurisdictional defense was raised for the first time in an answer to an amended complaint which came after the time to amend the original answer as of right had expired.

2002In Boulay v Olympic Flame ( 165 AD2d 191, 194 ), a unanimous Court wrote that “we agree with defendant that the Addesso holding does not affect the principle which permits the assertion of lack of personal jurisdiction in an answer amended as of right pursuant to CPLR 3025 (a) (but see, DeFilippis v Perez, 148 AD2d 490, 491-492 ).” The Court nonetheless found that Addesso was applicable, but only because the jurisdictional defense was raised for the first time in an answer to an amended complaint which came after the time to amend the original answer as of right had expired.

2000Plaintiffs fourth cause of action premised upon an alleged warranty of habitability by defendant condominium corporation should have been dismissed since it is clear that defendant condominium did not extend a warranty of habitability to the individually owned unit in question (see, Matter of Mailman [Abbady], 216 AD2d 115 ), and, in any event, would have made no such warranty to plaintiff subtenant, with whom it had “neither a contractual agreement nor landlord-tenant relationship” (Wright v Catcendix Corp., 248 AD2d 186 ).

2000Plaintiffs fourth cause of action premised upon an alleged warranty of habitability by defendant condominium corporation should have been dismissed since it is clear that defendant condominium did not extend a warranty of habitability to the individually owned unit in question (see, Matter of Mailman [Abbady], 216 AD2d 115 ), and, in any event, would have made no such warranty to plaintiff subtenant, with whom it had “neither a contractual agreement nor landlord-tenant relationship” (Wright v Catcendix Corp., 248 AD2d 186 ).

1999That proposed amendment is devoid of merit (see, Romeo v Schmidt, 244 AD2d 860 ; Brown v Samalin & Bock, 155 AD2d 407 ).

1999That proposed amendment is devoid of merit (see, Romeo v Schmidt, 244 AD2d 860 ; Brown v Samalin & Bock, 155 AD2d 407 ).

1998Condo No. 11 Assocs., 203 AD2d 544 ; Caceras v Zorbas, 148 AD2d 339 , affd 74 NY2d 884 ).

1998A motion for leave to amend the answer to assert a defense of workers’ compensation may be granted in the absence of prejudice even where, as here, it was first raised in response to the plaintiffs’ motion to reinstate the note of issue and to restore this case to the trial calendar (see, Murray v City of New York, 43 NY2d 400, 407 ; Goodarzi v City of New York, 217 AD2d 683, 684 ; Rainey v Jefferson Vil.

1998Condo No. 11 Assocs., 203 AD2d 544 ; Caceras v Zorbas, 148 AD2d 339 , affd 74 NY2d 884 ).

1994Summary judgment should not be granted on the basis of grounds not pleaded (Cohen v Adler, 128 AD2d 749 [2d Dept 1987]).

1989(See, Heritage v Van Patten, 59 NY2d 1017 .) The law is well settled that a motion to amend the answer to assert such defense of workers’ compensation must be granted even when first raised at this late stage.- (Murray v City of New York, 43 NY2d 400 .) Moreover, there can be no claim of prejudice or surprise since the plaintiff was aware of his employment status and had already received compensation benefits before the instant motion was made.

1987Leave to amend will be freely granted absent a showing of prejudice or surprise (see, CPLR 3025 [b]; Scharfman v National Jewish Hosp. & Research Center, 122 AD2d 939 ; Wyso v City of New York, 91 AD2d 661 ), and mere lateness in the absence of prejudice is not a barrier to amendment.

1987Leave to amend will be freely granted absent a showing of prejudice or surprise (see, CPLR 3025 [b]; Scharfman v National Jewish Hosp. & Research Center, 122 AD2d 939 ; Wyso v City of New York, 91 AD2d 661 ), and mere lateness in the absence of prejudice is not a barrier to amendment.