Opinion
November 27, 1995
Appeal from the Supreme Court, Kings County (Shaw, J.).
Ordered that the appeal from the order dated June 22, 1994, is dismissed since that order was superseded by the order dated April 17, 1995, made upon reargument; and it is further,
Ordered that the order dated April 17, 1995, is reversed insofar as appealed from, as a matter of discretion, so much of the order dated June 22, 1994, as denied the plaintiffs' motion pursuant to CPLR 3025 (b) for leave to amend the complaint is vacated, and the motion is granted; and it is further,
Ordered that the appellants are awarded one bill of costs.
Since the defendants failed to demonstrate either prejudice or surprise, the Supreme Court improvidently exercised its discretion by denying the plaintiffs' motion to amend the complaint (see, CPLR 3025 [b]; Fahey v County of Ontario, 44 N.Y.2d 934). Balletta, J.P., Rosenblatt, Pizzuto, Joy and Altman, JJ., concur.