Friday, December 9, 2016

Interposing a defense waived under CPLR 3211(e).

Practice point:  Defenses waived under CPLR 3211(e) can be interposed in an answer amended by leave of the court pursuant to CPLR 3025(b). In the absence of prejudice or surprise resulting directly from the delay in seeking leave, these applications will be freely granted unless the proposed amendment is palpably insufficient or patently devoid of merit. A determination whether to grant  leave is within the Supreme Court's broad discretion, and the exercise of that discretion likely will not be disturbed on appeal.  In exercising its discretion, the court will consider how long the party seeking the amendment was aware of the facts upon which the motion was predicated and whether the movant has offered a reasonable excuse for the delay.

Case:  Civil Serv. Empls. Assn. v. County of Nassau, NY Slip Op 08038 (2d Dep't November 30, 2016)

Here is the decision.

Monday's issue:  The storm in progress rule.