Tower Chemists, Inc. v 354 E. 66th St. Realty Corp.

[*1] Tower Chemists, Inc. v 354 E. 66th St. Realty Corp. 2015 NY Slip Op 50540(U) Decided on April 16, 2015 Appellate Term, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on April 16, 2015
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Schoenfeld, J.P., Ling-Cohan, J.
570037/15

Tower Chemists, Inc., Plaintiff-Appellant,

against

354 East 66th Street Realty Corp., Defendant-Respondent.

Plaintiff appeals from an order of the Civil Court of the City of New York, New York County (James E. d'Auguste, J.), entered June 25, 2014, which denied its motion to strike defendant's answer and granted defendant's cross motion to amend the answer.

Per Curiam.

Order (James E. d'Auguste, J.), entered June 25, 2014, affirmed, with $10 costs.

Civil Court providently exercised its discretion in permitting defendant to amend its answer to assert a counterclaim. Plaintiff is not prejudiced by the amendment (see Kocourek v Booz Allen Hamilton Inc., 85 AD3d 502, 504 [2011]) and the proposed counterclaim, alleging plaintiff's breach of a leasehold obligation to provide insurance and indemnify defendant, is not palpably insufficient or patently devoid of merit (see MBIA Ins. Corp. v Greystone & Co., Inc., 74 AD3d 499, 499-500 [2010]).

Nor did the court abuse its discretion in declining to strike the answer on account of defendant's untimely compliance with a prior order directing it to furnish a further bill of particulars and a response to a notice for discovery and inspection. While defendant was tardy in complying, its late compliance was not shown to have been willful, contumacious or in bad faith (see Irizarry v Ashar Realty Corp., 14 AD3d 323, 324 [2005]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur
Decision Date: April 16, 2015