Paola v. Esposito

161 A.D.2d 1148, 555 N.Y.S.2d 509, 1990 N.Y. App. Div. LEXIS 9132

Opinion

Order unanimously modified on the law and as modified affirmed without costs, in accordance with the following memorandum: Leave to amend pleadings "shall be freely given” absent prejudice or surprise resulting directly from the delay in moving to amend (CPLR 3025 [b]; McCaskey, Davies & Assocs. v New York City Health & Hosps. Corp., 59 NY2d 755, 757). Since the papers do not indicate that defendant can claim prejudice or surprise, it was an abuse of discretion for Supreme Court to deny plaintiff’s motion to amend her reply to assert the Statute of Limitations as an affirmative defense (see, McCaskey, Davies & Assocs. v New York City Health & Hosps. Corp., supra; Parker v Soper, 159 AD2d 973). (Appeal from order of Supreme Court, Niagara County, Sedita, J.— amend reply.) Present—Dillon, P. J., Callahan, Denman, Balio and Davis, JJ.