Verizon N.Y., Inc. v Consolidated Edison, Inc.

Verizon N.Y. Inc. v Consolidated Edison, Inc. 2007 NY Slip Op 02481 [38 AD3d 391] March 22, 2007 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, May 9, 2007

Verizon New York Inc., Respondent,
v
Consolidated Edison, Inc., Appellant.

—[*1] Richard W. Babinecz, New York (Helman R. Brook of counsel), for appellant.

Pillinger Miller & Tarallo, LLP, Elmsford (David E. Hoffberg of counsel), for respondent.

Order, Supreme Court, New York County (Joan A. Madden, J.), entered August 25, 2006, which denied defendant's motion to dismiss the complaint for failure to state a cause of action or for summary judgment, and granted plaintiff's cross motion to amend its complaint, unanimously affirmed, with costs.

This is an action for property damage allegedly attributed to defendant's negligence. Defendant's dismissal motion was based on an asserted conflict between facts set forth in the bill of particulars and in the complaint. The court resolved this conflict by granting plaintiff leave to amend its pleading. It is axiomatic that absent prejudice or surprise, such leave should be freely given (CPLR 3025 [b]), except where the proposed amendment plainly lacks merit and would serve no purpose than to needlessly complicate and/or delay discovery and trial (Berger v Water Commrs. of Town of Waterford, 296 AD2d 649 [2002]).

Defendant seeks dismissal of the complaint prior to discovery because it was inartfully drawn, a characterization with which we agree. Notwithstanding the above, not only is allowing such an amendment within the court's discretion (id.), but there is no inherent contradiction between the complaint and plaintiff's bill of particulars, and defendant has not demonstrated any prejudice or surprise arising out of granting such an amendment. Concur—Tom, J.P., Andrias, Sullivan, Williams and Gonzalez, JJ.