Taylor v. Village of Ilion

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.