L. B. Foster Co. v. Terry Contracting, Inc.

Orders entered December 7 and December 27, 1965 granting the moving defendants’ motion for leave to serve an answer containing a counterclaim to the cross answer and counterclaim of the defendant Tufano Contracting Corp., unanimously reversed on the law, the facts, and in the exereise of discretion, and the motion denied, with $30 costs and disbursements to the appellants. Three years have gone by since the joinder of issue, and this is the first time the moving defendants have made application for the relief sought. With the exception of the exact amount of damages sustained, or to be sustained, the facts pleaded in the answer were'known to the moving defendants since the institution of this action. There was no need to wait until the exact amount of damages was ascertained before asserting the proposed counterclaim. If we were to allow the respondents now to interpose a counterclaim, and if we are to give the defendant Tufano a reasonable time to prepare its defense, the trial, of necessity, must be delayed. In view of the inordinate delay of respondents in making this application and the resultant prejudice to the defendant Tufano if the application were granted, there is no justification for allowing the answer and counterclaim at this late date — on the eve of trial. (See O'Hara v. Tidewater Oil Co., 23 A D 2d 870.)

Concur — Breitel, J. P., Rabin, McNally, Steuer and Witmer, JJ.