Smith v. Weinstein

—In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Nassau County (Collins, J.), dated February 15, 1996, which denied their motion for summary judgment on the issue of liability and granted the defendants’ cross motion for leave to amend their answer.

Ordered that the order is affirmed, with costs.

At an examination before trial, the plaintiff Edward Smith testified that when the subject motor vehicle accident occurred, his left eye struck the vehicle’s steering wheel. This evidence raised a triable issue of fact (see, CPLR 3212 [b]) as to whether the defendant Jamie Ann Weinstein was in fact operating the vehicle at the time of the occurrence, as the plaintiffs contended in their complaint and bill of particulars.

The Supreme Court did not improvidently exercise its discretion in granting the defendants’ cross motion for leave to amend their answer (see, CPLR 3025 [b]; Zacher v Oakdale Islandia Ltd. Partnership, 211 AD2d 712). Rosenblatt, J. P., Copertino, Pizzuto, Krausman and Florio, JJ., concur.