Taylor v. Village of Ilion

231 A.D.2d 923, 648 N.Y.S.2d 362, 1996 N.Y. App. Div. LEXIS 10820

Opinion

Order unanimously modified on the law and as modified affirmed with costs to plaintiff in accordance with the following Memorandum: Supreme Court improvidently exercised its discretion in granting defendant’s motion for leave to serve a second amended answer. It is well settled that, absent surprise or prejudice, leave to amend pleadings is to be "freely given” (CPLR 3025 [b]) and that the determination whether to grant leave to amend is a matter addressed in the first instance to the discretion of the trial court {see, Edenwald Contr. Co. v City of New York, 60 NY2d 957, 959; Faracy v McGraw Edison Corp., 229 AD2d 463). Here, plaintiff demonstrated that he would be significantly prejudiced by defendant’s delayed assertion of the Statute of Limitations as an affirmative defense {cf, Wirhowski v Hudson Armored Car & Courier Serv., 221 AD2d 523; see generally, Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C3025:5, at 356).

In all other respects, the order is affirmed. (Appeal from Order of Supreme Court, Herkimer County, Parker, J.—Amend Pleading.) Present—Green, J. P., Pine, Wesley, Davis and Boehm, JJ.