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236 A.D.2d 461

Smith v. Weinstein

Appellate Division of the Supreme Court of the State of New York · decided 1997-02-10

Decided 1997-02-10

¶1—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.

¶2Ordered that the order is affirmed, with costs.

¶3At 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.

¶4The 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.

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