Opinion
January 24, 1980
Appeal from the Erie Supreme Court.
Present — Cardamone, J.P., Simons, Hancock, Jr., Callahan and Doerr, JJ.
Order unanimously modified and, as modified, affirmed, without costs, in accordance with the following memorandum: Plaintiff brought a motion pursuant to CPLR 3025 (subd [b]) for leave to serve an amended complaint, adding two additional party defendants and including causes of action based upon unjust enrichment, account stated and fraud. The motion was made following discovery proceedings which apprised plaintiff for the first time as to the true owners of certain real property where plaintiff had performed landscaping services that had gone unpaid and were the subject of plaintiff's initial complaint. Special Term allowed plaintiff to amend its complaint on condition that plaintiff pay $350 for attorney's fees to the defendants. We find that defendants will suffer no prejudice as a result of the amendment and conclude that Special Term did not abuse its discretion in granting plaintiff's motion for leave to amend (Capellino Abattoir, Inc. v Lieberman, 70 A.D.2d 713; Creative Marketing Prods. of Rochester v United States Fid. Guar. Co., 69 A.D.2d 1014). The same basic facts are alleged in the amended complaint as in the initial complaint and it does not appear that allowing the amendment will occasion any delay or additional expense. Plaintiff moved to amend with a reasonable time after ascertaining new and relevant information during the course of pretrial discovery proceedings and well in advance of trial. It was an improvident exercise of discretion for Special Term to grant plaintiff permission to amend its complaint conditioned upon plaintiff's payment of the sum of $350 to the defendants for counsel fees. Accordingly, such condition is deleted from the order.