Torts · MBE-tested
Arsenio Leiva, Respondent, v. Marietta Trucking Corp. et al., Defendants, and General Battery Corp. et al., Appellants. (And a Third-Party Action.)
272 A.D.2d 209708 N.Y.S.2d 294·New York Supreme Court, Appellate Division·2000·NY
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Opinion
Arsenio Leiva, Respondent, v Marietta Trucking Corp. et al., Defendants, and General Battery Corp. et al., Appellants. (And a Third-Party Action.)
[708 NYS2d 294]
[MAJORITY]
—Order, Supreme Court, New York County (Martin Schoenfeld, J.), entered December 3, 1999, which, inter alia, granted plaintiff leave to amend his complaint to add a demand for punitive damages, unanimously affirmed, with costs.
The motion court properly exercised its discretion in granting plaintiff leave to amend (see, Pchelka v Loomis-Root, Inc., 210 AD2d 889), since plaintiff’s proposed amendment was not “plainly lacking in merit” (Rahn v Carkner, 241 AD2d 585, 586). Defendants-appellants were not impermissibly prejudiced by the amendment, since they had not changed position materially or given up a right in reliance on the unamended complaint (see, U.S. Cablevision Corp. v Theodoreu, 192 AD2d 835, 837). This, moreover, is not a situation in which the party seeking leave to amend knowingly slept on his or her rights (cf., Balport Constr. Co. v New York Tel. Co., 134 AD2d 309, 312). Concur — Ellerin, J. P., Wallach, Saxe and Buckley, JJ.