Opinion
October 10, 1995
Appeal from the Supreme Court, Nassau County (Alpert, J.).
Ordered that the order is affirmed, without costs or disbursements.
While leave to amend a pleading should be freely given (see, CPLR 3025 [b]), the decision as to whether to grant such leave is generally left to the sound discretion of the trial court (see, Edenwald Contr. Co. v. City of New York, 60 N.Y.2d 957, 959; Kramer Sons v. Facilities Dev. Corp., 135 A.D.2d 942; Fulford v Baker Perkins, Inc., 100 A.D.2d 861), and its determination will not be lightly set aside (see, Beuschel v. Malm, 114 A.D.2d 569). In exercising its discretion, the court should consider how long the amending party was aware of the facts upon which the motion was predicated, whether a reasonable excuse for the delay was offered, and whether prejudice resulted therefrom (see, Caruso v Anpro, Ltd., 215 A.D.2d 713; Pellegrino v. New York City Tr. Auth., 177 A.D.2d 554, 557).
In the instant case, the defendant moved to amend its answer in January 1994 to assert the defense of res judicata based upon an order of the United States Bankruptcy Court, Southern District of Ohio, dated January 1991. Despite the three-year delay in moving for leave to amend and even though the plaintiff had undertaken the time and expense of conducting discovery, the defendant failed to offer any explanation for its dilatory motion. In addition, the defendant's motion papers failed to establish that the plaintiff's claim was encompassed by the scope of the Bankruptcy Court's order. Moreover, the defendant failed to submit a copy of its proposed amended answer with the motion for the trial court's review (see, Goldner Trucking Corp. v. Stoll Packing Corp., 12 A.D.2d 639). Accordingly, it cannot be said that the trial court's determination to deny leave to amend was an improvident exercise of discretion (see, Caruso v. Anpro, supra; Moeller v. Astor Chocolate Corp., 214 A.D.2d 548; Olewnik v Bernstein, 212 A.D.2d 982; Rose v. Velletri, 202 A.D.2d 566).
Under the circumstances of this case, the defendant's reliance on Corsale v. Pantry Pride Supermarket ( 197 A.D.2d 659) is misplaced. Balletta, J.P., Rosenblatt, Ritter and Pizzuto, JJ., concur.