Continental Casualty Co. v. R.S. Look, Inc.

—Order unanimously affirmed with costs. Memorandum: Supreme Court properly granted defendant’s motion for leave to serve an amended answer. Leave to amend "shall be freely given” (CPLR 3025 [b]; see, Ciminelli Constr. Co. v County of Erie, 212 AD2d 1046 [decided herewith]), particularly when the proposed amendment does not set forth new facts, but merely adds an additional theory of recovery (Brewster v Baltimore & Ohio R. R. Co., 185 AD2d 653 ; Trusthouse Forte [Garden City] Mgt. v Garden City Hotel, 106 AD2d 271 , 272; Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C3025.-8, at 359). Further, because there was no showing of prejudice or surprise to plaintiffs, the proposed amendment to the ad damnum clause was properly permitted (see, Loomis v Civetta Corinno Constr. Corp., 54 NY2d 18 , 23, rearg denied 55 NY2d 801 ). Finally, the court did not abuse its discretion in denying plaintiffs’ cross motion for costs and attorneys’ fees (see, CPLR 3025 [b]). (Appeal from Order of Supreme Court, Onondaga County, Nicholson, J.—Amend Answer.) Present—Green, J. P., Wesley, Callahan, Doerr and Davis, JJ.