FICORILLI v. THOMSEN

ORDERED that the order is affirmed, with costs.

The Supreme Court providently exercised its discretion in permitting the defendant to amend his answer to assert the affirmative defense of medical emergency, as the defense was meritorious and the plaintiffs failed to establish prejudice or surprise ( see, CPLR 3025[b]; McCaskey, Davies Assoc. v. New York City Health Hosps. Corp., 59 N.Y.2d 755; Fahey v. County of Ontario, 44 N.Y.2d 934, 935). The general rule is that the legal sufficiency or merits of proposed amendments will not be examined on a motion to amend unless the insufficiency or lack of merit is clear and free from doubt ( see, Alejandro v. Riportella, 250 A.D.2d 556; Sentry Ins. Co. v. Kero-Sun, Inc., 122 A.D.2d 204; Norman v. Ferrara, 107 A.D.2d 739).

Furthermore, the plaintiffs' cross motion for summary judgment was properly denied since, after they made out a prima facie case for summary judgment, the defendant's submissions raised a triable issue of fact as to whether the defendant experienced a sudden medical emergency and whether that medical emergency was unforeseen ( see, State of New York v. Susco, 245 A.D.2d 854; McGinn v. New York City Tr. Auth., 240 A.D.2d 378; Thomas v. Hulslander, 233 A.D.2d 567; Abish v. Cetta, 155 A.D.2d 495; Aiello v. Garahan, 91 A.D.2d 839, affd 58 N.Y.2d 1078).