Newton v. Aqua Flo Co.

Order unanimously reversed, without costs, and motion granted. Memorandum: In an action to recover damages for wrongful death, defendants appeal from an order which denied their motion to amend their answer to assert an 920 affirmative seatbelt defense. Absent prejudice or surprise, leave to amend shall be freely granted (CPLR 3025, subd [b]). Upon consideration of the motion, Special Term should not examine the merits or legal sufficiency of the proposed amendment unless the proposed pleading is clearly and patently insufficient on its face, a circumstance not present here (see De Forte v Allstate Ins. Co., 66 AD2d 1028). Defendants discovered during pretrial examinations that the decedent may not have been wearing a seatbelt at the time of the accident. There can be no surprise to the plaintiff in the assertion of a seatbelt defense, which is relevant only to the question of damages (see Spier v Barker, 35 NY2d 444). There is also no prejudice to the plaintiff and the defendants’ motion should have been granted (see Seip v Esposito, 78 AD2d 850; Karras v County of Westchester, 71 AD2d 878; Wardlaw v Ford Marketing Corp., 53 AD2d 610). (Appeal from order of Supreme Court, Chautauqua County, Flaherty, J. — amend answer.) Present — Dillon, P. J., Hancock, Jr., Callahan, Denman and Green, JJ.