Gaveglia v. Barrack

In an action to recover damages for personal injuries, etc., arising out of an automobile accident, the defendant appeals from an order of the Supreme Court, Suffolk County (Mallon, J.), entered April 22, 1988, which denied his motion for leave to serve an amended answer including the affirmative defense of release. Ordered that the order is affirmed, with costs. The court properly exercised its discretion in denying the defendant’s motion since he failed to establish that the proposed affirmative defense of release was meritorious. (CPLR 3025 [b]; Goldstein v Barco of Cal., 109 AD2d 817). The defendant failed to establish by an affidavit by one with personal knowledge that the check representing the consideration for the settlement was ever forwarded to the plaintiff’s counsel, the plaintiff’s counsel categorically denied ever receiving the check and the record is clear that the check was never negotiated (cf., Elliot v Gehen, 105 AD2d 1112). Therefore, under these circumstances where there was no showing of the exchange of consideration, the court correctly found that the settlement agreement was never consummated. Mangano, J. P., Brown, Lawrence, Hooper and Harwood, JJ. concur.