So what happens when you admit an allegation in an answer you should never have been admitted?July 3, 2011

Anoun v City of New York, 2011 NY Slip Op 05638 (1st Dept. 2011)

Deny, Deny, Deny and do not withdraw those affirmative defenses.  Well, only when answering a complaint.

But, despite everything I always thought, you can get around an admission in a complaint through a motion for leave to amend.

“defendant answered and admitted ownership and control over the area where the accident occurred.”  WOOPS

“Defendant subsequently moved for, inter alia, summary judgment, arguing that it did not own the subject park. Defendant provided evidence that the property was owned by the State. When defendant realized that it had previously admitted ownership, defendant moved for leave to serve an amended answer and to stay a determination of the summary judgment motion.”

It is well established that leave to amend a pleading is freely given “absent prejudice or surprise resulting directly from the delay” (Fahey v County of Ontario, 44 NY2d 934, 935 [1978]; see CPLR 3025[b]). “Prejudice arises when a party incurs a change in position, or is hindered in the preparation of its case, or has been prevented from taking some measure in support of its position” (Valdes v Marbrose Realty, 289 AD2d 28, 29 [2001]). Here, the 90-day period within which plaintiff could serve the State with a notice of claim terminated on September 29, 2008, more than three months prior to defendant’s admission of ownership. Thus, the admission could not have caused plaintiff any prejudice. For the same reasons, plaintiff’s claims of estoppel are unfounded (see Baje Realty Corp. v Cutler, 32 AD3d 307, 310 [2006]).

Although it may ultimately be found that defendant participates in the park’s operation or retains some control over it, that does not warrant denial of the motion to amend. On such a motion, the court considers “the sufficiency of the merits of the proposed amendment” (Heller v Louis Provenzano, Inc., 303 AD2d 20, 25 [2003] [internal quotation marks and citation omitted]). Here, defendant’s submissions, which included an affidavit of the title examiner and *2 appropriation maps showing that the property was the subject of a taking by the State, were sufficient to support the proposed amendment (see e.g. MBIA Ins. Corp. v Greystone & Co., Inc., 74 AD3d 499 [2010]).”

So here you go.

2 Responses

  1. Larry Rogak says:

    I had this experience. I was defending a property owner in a sidewalk slip and fall. The complaint did not give the location’s street address, but instead gave the section, block and lot number. I ran that by my client who said it was correct. Long story short — during depositions it becomes apparent that the location of plaintiff’s fall was the property next door, which my client did not own. The section block and lot number were not my client’s, but instead were the neighbor’s. I made a motion to amend the complaint and for summary judgment. Plaintiff’s attorneys screamed bloody murder, but the Supreme Court judge held that it was a MUTUAL mistake and granted the motion.

  2. Raymond Zuppa says:

    Lucky Larry. Huge Federal Case and precedent. Little kid becomes quad on pool slide. The pool slide company is sued. Two years later the company sends someone out to look at the slide. His conclusion: “it’s not our slide.”

    Statute blown for real slide owner.

    The Circuit Court: “It’s your slide now.”

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