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Herrick v. Second Cuthouse

Court of Appeals of the State of New York
Dec 13, 1984
64 N.Y.2d 692 (N.Y. 1984)

Opinion

Argued November 16, 1984

Decided December 13, 1984

Appeal from the Appellate Division of the Supreme Court in the Second Judicial Department, Harry H. Kutner, J.

Bernard Meyerson for appellant.

Robert S. Murphy for respondent.


MEMORANDUM.

The order of the Appellate Division should be affirmed, with costs.

Exercising their discretion, the courts below granted defendant's motion to amend its answer to include the defenses of setoff and apportionment. The Appellate Division granted leave to appeal to this court and certified the following question: "Was the order of this court, dated April 30, 1984 properly made?" We cannot say that the proposed defenses plainly lacked merit or that a showing of prejudice to plaintiff in allowing the amendment had been made (see Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, C3025:6, p 477; C3025:11, p 481). Accordingly, there was no abuse of discretion as a matter of law in permitting amendment of the answer. In the absence of such abuse, this court has no power to review the grant of the discretionary remedy. Hence, the only remaining issue presented by the question certified is whether the Appellate Division had the power to grant the requested relief ( Brady v Ottaway Newspapers, 63 N.Y.2d 1031). We conclude that it had this power, and pass on no other issue.

Chief Judge COOKE and Judges JASEN, JONES, WACHTLER, MEYER, SIMONS and KAYE concur.

Order affirmed, with costs, and question certified answered in the affirmative in a memorandum.


Summaries of

Herrick v. Second Cuthouse

Court of Appeals of the State of New York
Dec 13, 1984
64 N.Y.2d 692 (N.Y. 1984)
Case details for

Herrick v. Second Cuthouse

Case Details

Full title:SCOTT HERRICK, Appellant, v. SECOND CUTHOUSE, LTD., t/a FORBIDDEN FOREST…

Court:Court of Appeals of the State of New York

Date published: Dec 13, 1984

Citations

64 N.Y.2d 692 (N.Y. 1984)
485 N.Y.S.2d 518
474 N.E.2d 1186

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