Gerry Finke's Marine Corp. v. Hudson Valley Dredge & Dock Co.

Appeal from an order of the Supreme Court at Special Term, entered December 3, 1975 in Albany County, which granted plaintiff’s motion for leave to serve an amended complaint. On or about September 26, 1973, plaintiff entered into a contract with defendant corporation whereby it was to remove the remains of a barge wreck and drive certain piles as directed. The work was not completed and plaintiff brought an action seeking damages for breach of contract. In the fifth cause of action of the complaint plaintiff alleged that it had to recontract the work and purchase new pilings, all to its damage in the sum of $1,854.54. Thereafter it moved to amend the complaint to increase that amount to $12,973.34, maintaining the cost to complete the work had dramatically increased. Special Term granted the motion. It is from this order that defendants appeal. Our concern is not whether plaintiff can prove *955the allegation of the amended complaint, but, rather, whether Special Term properly granted leave to serve it. CPLR 3025 (subd [b]) provides that leave to amend shall be freely given. The issues as to the cost to complete the work and whether plaintiff took the necessary steps to mitigate damages are for the trial. Special Term, therefore, properly granted the motion to amend. Order affirmed, with costs. Koreman, P. J., Sweeney, Kane, Main and Larkin, JJ., concur.