Silva v. Brooklyn Union Gas Co.

In an action to recover damages for personal injuries, the defendant Brooklyn Union Gas Company appeals from an order of the Supreme Court, Kings County (Hutcherson, J.), dated December 22, 1993, which denied its motion for leave to serve an amended answer asserting the defense of the "fireman’s rule”. Ordered that the order is reversed, on the law and as a matter of discretion, with costs, the motion is granted, and the proposed amended answer is deemed served. The additional defense asserted in the proposed amended answer is not "devoid of merit” with respect to the plaintiff’s cause of action sounding in common-law negligence (see, Zanghi v Niagara Frontier Transp. Commn., 85 NY2d 423; Hauptman v New York City Health & Hosps. Corp., 162 AD2d 588). In view of the plaintiff’s failure to demonstrate any prejudice which would result from the assertion of the defense, we conclude that the Supreme Court improvidently exercised its discretion in denying the appellant’s motion (see, CPLR 3025 [b]; Fahey v County of Ontario, 44 NY2d 934). Bracken, J. P., Rosenblatt, Krausman and Goldstein, JJ., concur. Alfonso Taormina et al., Appellants, v Leonard Hibsher et al., Respondents. [626 NYS2d 559]