Opinion
February 3, 1995
Appeal from the Supreme Court, Onondaga County, Nicholson, J.
Present — Green, J.P., Wesley, Callahan, Doerr and Davis, JJ.
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 A.D.2d 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 A.D.2d 653; Trusthouse Forte [Garden City] Mgt. v. Garden City Hotel, 106 A.D.2d 271, 272; Siegel, Practice Commentaries, McKinney's Cons Laws of N.Y., 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 N.Y.2d 18, 23, rearg denied 55 N.Y.2d 801). Finally, the court did not abuse its discretion in denying plaintiffs' cross motion for costs and attorneys' fees (see, CPLR 3025 [b]).