Susi v. Acme Cassa, Inc.

In an action by subcontractors against their contractor and the City of New York for breach of contract, and against several surety companies upon a payment bond pertaining thereto, the surety companies appeal from an order of the Supreme Court, Kings County, entered August 26, 1965, which denied their motion for leave to serve an amended answer. Order reversed, without costs, and motion granted. The amended answer shall be served within 20 days after entry of the order hereon. The denial of the motion was grounded upon a holding that appellants did not present a reasonable excuse for their delay in making their motion, and that the affidavit of merits with respect to the proposed amended answer is insufficient. In our opinion, the explanation offered for the delay was, upon the facts shown in the record herein, reasonable, and the affidavit of merits sufficient. Under all the circumstances, and in view of the fact that no prejudice accrued to the plaintiffs by reason of the appellants’ delay in seeking to amend their answer as proposed, we are of the opinion that it was an improvident exercise of discretion on the part of the learned Special Term to refuse to permit the appellants to serve such amended answer (Bentivegna v. Boscha, 18 A D 2d 835). Brennan, Acting P. J., Hill, Rabin, Hopkins and Benjamin, JJ., concur.