Bentivegna v. Boscha 18 A.D.2d 835

In an action by a real estate broker to recover commissions allegedly owed to him by the defendants, the defendants appeal from so much of an order of the Supreme Court, Queens County, dated June 13, 1962, as denied their motion for leave to serve an amended answer so as to plead an affirmative defense based upon plaintiff’s execution and delivery of a general release to one Bernard Foti “ with whom the defendants are alleged in the complaint to have conspired to deprive plaintiff of his commission.” Order, insofar as appealed from, reversed, without costs, and defendants’ motion granted. The amended answer shall be served within 10 days after entry of the order hereon. Under all the circumstances presented by this record, and in view of the fact that no prejudice accrued to the plaintiff by reason of the defendants’ delay in seeking to amend their answer as proposed, we are of the opinion that it was an improvident exercise of discretion on the part of the learned Special Term to refuse to permit the defendants to serve such amended answer (Greenspan v. Greenspan, 14 A D 2d 910). “ The mere lapse of time is not a sufficient ground for denial” (Calautti v. National Transp. Co., 10 A D 2d 955). In granting defendants’ motion we do not pass upon the sufficiency or the merits of the proposed defense (Amherst Bowling Center v. Dolce, 11 A D 2d 1079). Beldoek, P. J., Ughetta, Brennan, Hill and Rabin, JJ., concur.