Opinion
December 9, 1993
Appeal from the Supreme Court, New York County (Myriam Altman, J.).
It is axiomatic that leave to amend pleadings should be freely given (CPLR 3025 [b]), that the determination of whether to allow or disallow the amendment is committed to the court's discretion (Murray v City of New York, 43 N.Y.2d 400, 404-405), and that in the absence of surprise or prejudice, it is an abuse of discretion, as a matter of law, for the trial court to deny leave to amend an answer during or even after trial (McCaskey, Davies Assocs. v New York City Health Hosps. Corp., 59 N.Y.2d 755, 757; see also, supra, at 405).
We find that the IAS Court did not abuse its discretion in permitting the Wolfberg defendants to amend their verified answer, on the eve of trial, to withdraw their prior admission therein that the Quon defendants had acted as the plaintiff's agent in the sales transactions which formed the basis for the underlying action, where, as here, the requested amendment was only sought, and the agency relationship only became central to the defendants' case, as a direct result of the plaintiff's recent attempt to pursue a new claim, not properly pleaded in its complaint, for knowing participation in the breach of a fiduciary duty.
We have reviewed the plaintiff's remaining claims and find them to be without merit.
Concur — Sullivan, J.P., Carro, Wallach and Asch, JJ.