Opinion
February 22, 1988
Appeal from the Supreme Court, Rockland County (Kelly, J.).
Ordered that the order is affirmed insofar as appealed from, with costs, and the third-party plaintiffs' time to serve a further amended third-party complaint is extended until 20 days after service upon them of a copy of this decision and order, with notice of entry.
The Supreme Court, Rockland County, dismissed the amended third-party complaint for legal insufficiency without prejudice to service of a further amended third-party complaint. The appellant contends that the amended third-party complaint should have been dismissed in its entirety with prejudice. We find that leave to replead was properly granted. The determination whether to allow an amendment to the pleadings rests within the sound discretion of the Supreme Court and the exercise of such discretion should not lightly be set aside (see, Edenwald Contr. Co. v City of New York, 60 N.Y.2d 957). Absent prejudice or surprise to the nonmoving party, leave to amend pleadings should be freely given (CPLR 3025 [b]; Edenwald Contr. Co. v City of New York, supra; McCaskey, Davies Assocs. v New York City Health Hosps. Corp., 59 N.Y.2d 755). At bar, we find no prejudice or surprise would accrue to the appellant as the circumstances of the incident in question, the parties involved and the theory of liability are clearly set forth in the pleadings in the main action and the first amended third-party complaint. The court, therefore, properly exercised its discretion in permitting the further amendment of the third-party complaint. Thompson, J.P., Bracken, Brown, Weinstein and Spatt, JJ., concur.