Sanjurjo v Milio, 2021 NY Slip Op 50208(U) [70 Misc 3d 1224(A)]

to it expires, or within twenty days after service of a pleading responding to it."

Amended pleadings served within these parameters are served as "of right." When an
amended pleading is not "as of right" and is done without leave of court, (see CPLR
§ 3025(b)), it is considered a nullity. (Walden v Nowinski, 63 AD2d 586, 404
NYS2d 635 [1st Dept 1978]; Nikolic v Federation Employment and Guidance Service,
Inc., 18 AD3d 522, 524, 795 NYS2d 303 [2nd Dept, 2005]. Here, however, the amended
pleading was served [via certified mail, return receipt requested] on January 20, 2021, which was
prior to respondent serving an answer [the answer is dated January 21, 2021]. As such, the
twenty (20) day limitations encapsulated in CPLR § 3025(a) never started to run, much less
expire. (Gowen v Helly Nahmad
Gallery, Inc., 60 Misc 3d 963, 979, 77 NYS3d 605 [Sup Ct, New York County, 2018]
("Despite the age of the instant matter, the Defendants have not yet filed an Answer. Therefore,
pursuant to CPLR§ 3025(a), the amendment of the complaint is proper as of right."); Empire Blue Cross and Blue Shield v
Various Underwriters of Lloyds, London, England, 5 Misc 3d 1024[A] at *2, 2004 NY
Slip Op 51528[U] [Sup Ct, New York County, 2004]; Jones v State of New York, 67 Misc 3d 1201[A] at *3, 2020 NY
Slip Op 50351[U] [Court of Claims 2020] ("Moreover, the [*2]Court notes that Claimant's time to amend the Claim as of right
under CPLR 3025 (a) has not yet expired as Defendant has not served an answer to the Claim.");
Hedgepeth v Wing, 5 Misc 3d
1009[A] at *4, 2004 NY Slip Op 51300[U] [Sup Ct, Westchester County 2004]).

Whether petitioner could serve an amended petition as of right prior to respondent's answer