Birnbaum v. Birnbaum

— Order, Supreme Court, New York County (Jacqueline Silbermann, J.), entered March 30, 1989, granting plaintiffs motion for leave to serve a supplemental complaint, unanimously affirmed, without costs.

The court did not abuse its discretion in granting the motion for leave to serve a supplemental complaint. Defendant fails to demonstrate that plaintiff’s delay in asserting the additional cause of action substantially impaired his ability to respond to it. (See, 3 Weinstein-Korn-Miller, NY Civ Prac If 3025.14, at 30-607.) Nor are we persuaded that plaintiffs counsel intentionally deceived opposing counsel; in any event, the conduct would not warrant denial of the motion. Further, we conclude that for purposes of the motion, the complaint sufficiently pleads, and plaintiffs affidavit adequately supports, a cause of action for divorce based on cruel and inhuman treatment. Concur — Milonas, P. J., Rosenberger, Ellerin and Rubin, JJ.