Di Prospero v. Ford Motor Co.

Mahoney, P. J. (dissenting). I dissent. Here, the proposed complaint amendment, in response to defendant Ford Motor Company’s motion to serve a second amended answer containing a needless defense that the complaint fails to state a cause of action (see Bazinet v Lorenz, 70 AD2d 582), does not add any new facts to the case but only seeks to add a cause of action in strict products liability, a theory of recovery not available when the original complaint was served in 1972 (cf. Codling v Paglia, 32 NY2d 330). Thus, plaintiffs’ cross motion seeks leave to make a conceptual rather than a factual…