Schanbarger v. Baker , 75 A.D.2d 964 ( 1980 )

Appeal from an order of the Supreme Court at Special Term, entered November 26, 1979 in Washington County, which denied plaintiff’s motion for summary judgment and granted defendants leave to file an amended answer. On May 9, 1974, plaintiff was arrested by the New York State Police and charged with violations of the Penal Law and the Vehicle and Trafile Law. Shortly thereafter, he commenced an action for false arrest, but he was nonetheless convicted in Colonie Town Court. His convictions were ultimately reversed on appeal to the Albany County Court, however, and he then instituted a separate action for malicious prosecution. Although defendants filed a timely answer in the false arrest action, they apparently did not initially serve a separate answer in the action for malicious prosecution. Under these circumstances, plaintiff’s subsequent motion for summary judgment was denied, and defendants’ request for leave to file an amended answer was granted. This appeal ensued. We hold that Special Term’s order should be affirmed. It is well settled that courts have very broad discretion in allowing amendments to pleadings (Murray v City of New York, 43 NY2d 400, mot for rearg dsmd 45 NY2d 966) and that leave to amend should be freely given when there has been no showing that the opposing party would be prejudiced thereby (Mosley v Baker, 59 AD2d 936). Here, since plaintiff was originally convicted in Colonie Town Court, it appears that defendants have a meritorious defense to the malicious prosecution action, and plaintiff has failed to establish that the court abused its broad discretion by allowing the amended answer. Moreover, plaintiff was plainly not entitled to summary judgment merely because defendants failed to file a timely answer in the action for malicious prosecution. Order affirmed, with costs. Sweeney, J. P., Staley, Jr., Main, Mikoll and Casey, JJ., concur.