Opinion
May 11, 1990
Appeal from the Supreme Court, Niagara County, Sedita, J.
Present — Dillon, P.J., Callahan, Denman, Balio and Davis, JJ.
Order unanimously modified on the law and as modified affirmed without costs, in accordance with the following memorandum: Leave to amend pleadings "shall be freely given" absent prejudice or surprise resulting directly from the delay in moving to amend (CPLR 3025 [b]; McCaskey, Davies Assocs. v. New York City Health Hosps. Corp., 59 N.Y.2d 755, 757). Since the papers do not indicate that defendant can claim prejudice or surprise, it was an abuse of discretion for Supreme Court to deny plaintiff's motion to amend her reply to assert the Statute of Limitations as an affirmative defense (see, McCaskey, Davies Assocs. v. New York City Health Hosps. Corp., supra; Parker v. Soper, 159 A.D.2d 973).