Glasser v. Jewish Hospital & Medical Center

In a medical malpractice action, plaintiff appeals from two orders of the Supreme Court, Kings County (Adler, J.), dated December 4,1979 and March 5,1980, respectively, the first of which granted defendant’s motion for leave to amend its answer to assert the defense of the Statute of Limitations, and the second of which granted the defendant’s motion to dismiss the complaint based on that defense. Orders affirmed, without costs or disbursements, on condition that defendant’s attorney personally pay plaintiff $500 costs within 20 days after service upon defendant of a copy of the order to be made hereon, together with notice of entry. In the event payment is not made, then orders reversed, and motions denied, with one bill of $50 costs and disbursements. CPLR 3025 provides that leave to amend pleadings should be freely granted on such terms as may be just. Trial Term properly granted defendant’s motion for leave to amend its answer since the granting of leave to amend would not be prejudicial to plaintiff. However, the delay in so moving resulted in the expending of time and money in preparing for trial, which could have been prevented by a timely motion to amend the answer. This is curable by the imposition of costs (Ciunci v Wella Corp., 23 AD2d 754). Furthermore, plaintiff’s complaint was properly dismissed as being barred under the Statute of Limitations (see Lampiasi v St. Vincent’s Hosp. & Med. Center of N. Y., 71 AD2d 203; CPLR 208, 105, subd [j]). Mangano, J. P., Rabin, Margett and Weinstein, JJ., concur.