Waiver and Amendment CPLR R. 3211(e); CPLR R. 3025(b)

CPLR R. 3025 Amended and supplemental
pleadings
(b) Amendments and
supplemental pleadings by leave

CPLR R. 3211 Motion to dismiss
(e)
Number,
time and waiver of objections; motion to plead over

Complete Mgt., Inc. v Rubenstein, 2010 NY Slip Op 04726 (App. Div., 2nd, 2010)

However, the Supreme Court improvidently exercised its discretion in
denying that branch of the defendants' motion which was for leave to
amend their answer to assert the affirmative defense of lack of capacity
to sue. Although the defendants waived this defense by failing to raise
it in their answer or in a motion to dismiss made prior to answering (see
CPLR 3211[a]
[3];[e]; FBB Asset Mgrs. v Freund, 2 AD3d 573, 574; Harte
v Richmond County Sav. Bank,
224 AD2d 585, 586), " defenses waived
under CPLR 3211(e) can nevertheless be interposed in an answer amended
by leave of court pursuant to CPLR 3025(b) so long as the amendment does
not cause the other party prejudice or surprise resulting directly from
the delay'"
(Nunez v Mousouras, 21 AD3d 355, 356, quoting Endicott
Johnson Corp. v Konik Indus.,
249 AD2d 744, 744). Under the
circumstances of this case, the granting of leave to amend would not
have resulted in prejudice or surprise to the plaintiff, and the
proposed amendment was neither palpably insufficient nor totally devoid
of merit (see Bajanov v Grossman, 36 AD3d 572, 573; Nunez
v Mousouras,
21 AD3d at 356).

Compare with

Sackett v Konigsberg, 2010 NY Slip Op 04765 (App. Div., 2nd, 2010)

Contrary to the plaintiff's contention, the Supreme Court properly
granted the defendants' motion to strike the amended complaint based
upon her failure to comply with CPLR 3025. The record indicates that the
plaintiff served her amended complaint well beyond the period within
which an amended pleading may be served as of right (see CPLR
3025[a]) without first obtaining leave of the court or the stipulation
of the parties (see Nikolic v Federation Empl. & Guidance Serv.,
Inc.,
18 AD3d 522, 524).

The appeal from the order dated March 17, 2008, must be dismissed
as abandoned, as the plaintiff does not seek in her brief reversal or
modification of any portion of the order (see Sirma v Beach, 59
AD3d 611, 614; Bibas v Bibas, 58 AD3d 586, 587).

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