Opinion
October 19, 1965
Order entered July 23, 1965 granting plaintiff leave to serve an amended complaint adding an item of $34,590 in damages without prejudice to the condition of the case on the General Jury Calendar and giving leave to defendant to conduct further discovery with respect to the additional item of damage unanimously modified on the law and the facts, and in the exercise of discretion, to the extent of requiring as conditions for granting leave to serve the amended complaint that plaintiff pay the sum of $250 in costs, together with the costs and disbursements of the action to date, within 20 days after service of the order to be entered herein; and as so modified the order is affirmed, without costs and disbursements on this appeal. Although the amendment sought here is attempted five years after the action was commenced and practically at the eve of trial, plaintiff is not seeking to change the basic issues of the action. The general policy of courts is to permit amendments before trial where no prejudice will result. (CPLR 3025, subd. [b]; Minasy v. Foster Wheeler Corp., 15 A.D.2d 759.) However, where there has been a long delay and a statement of readiness has been filed, judicial discretion in allowing amendments should be "discreet, circumspect, prudent and cautious". (See Price v. Brody, 7 A.D.2d 204, 206.) Under all of the circumstances of this case, it was not an improvident exercise of discretion to grant leave to amend. However, some prejudice has resulted to defendant which requires the imposition of more stringent conditions than those imposed by Special Term. Consequently, we have added the conditions indicated above. Failure to comply with those conditions will necessitate a denial of the motion for leave to amend. Settle order on notice.
Concur — Botein, P.J., Rabin, Valente, Eager and Steuer, JJ.