Opinion
September 22, 1978
Appeal from the Herkimer Supreme Court.
Present — Marsh, P.J., Moule, Simons, Hancock, Jr., and Witmer, JJ.
Order unanimously reversed, with costs, and motion granted. Memorandum: Plaintiff's moving papers demonstrate that it was not clear until December, 1977, less than one month prior to bringing the motion, that the laminectomy had not been successful, that plaintiff's back discomfort had not lessened, and that, therefore, his disability was complete and he would probably not be returning to work. Defendants have failed to show that they would be prejudiced by the amendment; in fact, plaintiff's attorney put the defendants on notice of the likelihood of an amendment in his August, 1977 letter which apparently was not objected to by the defendants. It is well settled that in the absence of a showing of prejudice or surprise leave to amend pleadings "'shall be freely given'" (Fahey v County of Ontario, 44 N.Y.2d 934, 935; CPLR 3025). Under the circumstances, it was an improvident exercise of discretion to deny the motion.