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

is essentially academic since petitioner could, without question, serve the amended petition
within twenty (20) days after the answer was served. Thus, the amended petition is deemed
served and filed.

Respondent's motion to file an amended answer is granted and the verified amended answer
attached to the cross-motion is deemed served and filed. CPLR 3025(b) provides that leave to
amend a pleading shall be freely given upon such terms as may be just. (Norwood v City of
New York, 203 AD2d 147, 148-149, 610 NYS2d 249 [1st Dept 1994]). Amendment can be
at any time, especially where there is not significant prejudice to the opposing party.
(National Union Fire Ins. Co. v Schwartz, 209 AD2d 289, 290, 619 NYS2d 542 [1st Dept
1994]).

Here, there is no prejudice alleged. As to the merit of the defenses, (see generally,
Thomas Crimmins Contracting Co. v New York, 74 NY2d 166, 170, 544 NYS2d 580
[1989] [proposed defenses which "plainly lack merit" should be denied]), the court will discuss
each defense individually in context of petitioner's motion to dismiss the affirmative defenses.

RESPONDENT'S AFFIRMATIVE DEFENSES

Respondent's first affirmative defense alleges service of the December 17, 2020 order to
show cause and petition was not timely made on respondent by December 19, 2020 and that
service was not via certified mail, return receipt requested. Petitioner's affidavit of service,
however, alleges service on respondent at 165 W. 127th Street, Apt. 101, New York, NY 10027
via certified mail, return receipt requested on December 19, 2020.[FN3]
The affidavit lists the tracking number and attaches a copy of the certified mail receipt. This
affidavit creates a presumption of proper service. (see Kihl v Pfeffer, 94 NY2d 118, 122,