Ludwig v. American LaFrance, Inc. , 52 A.D.2d 728 ( 1976 )

Order unanimously affirmed, with costs. Memorandum: This negligence cause of action arose on January 13, 1971 when plaintiffs intestate suffered fatal injuries while employed as a fireman of the City of Syracuse and engaged in fighting a fire. Suit was commenced in February, 1972. The city’s original answer contained a cross claim against codefendant American LaFrance for indemnity based upon breach of warranty with respect to the aerial fire truck on which plaintiffs intestate was working at the time of his accident. In February, 1975 after extensive preliminary proceedings had been completed and the case had appeared on the Day Calendar, the city moved to amend its answer to assert a cross claim against codefendant American LaFrance, similarly based upon breach of warranty, for property damage to the fire truck sustained in the accident. The existence of the city’s possible claim was obvious from the outset, and Special Term’s order denying leave to amend the answer was a proper exercise of discretion. (Appeal from order of Onondaga Supreme Court in action for damages for wrongful death.) Present—Marsh, P. J., Simons, Dillon, Goldman and Witmer, JJ.