| Campbell v Genesis Contrs., Inc. |
| 2010 NY Slip Op 06772 [76 AD3d 1038] |
| September 28, 2010 |
| Appellate Division, Second Department |
| Vanessa Campbell, Appellant, v Genesis Contractors, Inc.,Respondent. |
—[*1] Thomas J. Murphy & Associates, PLLC, Newburgh, N.Y., for respondent.
In an action to recover damages for injury to property, the plaintiff appeals from an order ofthe Supreme Court, Orange County (McGuirk, J.), dated January 11, 2010, which granted thedefendant's motion for leave to serve an amended answer to interpose the affirmative defense ofrelease.
Ordered that the order is affirmed, with costs.
CPLR 3025 (b) provides that leave to serve an amended pleading should be freely givenupon such terms as are just. Whether to grant such leave is within the Supreme Court's broaddiscretion (see Ingrami v Rovner, 45AD3d 806 [2007]; Keating vNanuet Bd. of Educ., 44 AD3d 623 [2007]), and leave to amend will generally begranted as long as the opponent is not surprised or prejudiced by the proposed amendment, andthe proposed amendment is not patently devoid of merit (see AYW Networks v TeleportCommunications Group, 309 AD2d 724 [2003]; Charleson v City of Long Beach,297 AD2d 777 [2002]).
In this case, the Supreme Court providently exercised its discretion in granting thedefendant's motion for leave to amend the answer to assert the affirmative defense of release.Defense counsel provided a reasonable explanation for the delay in seeking leave to amend theanswer, and the defense sought to be interposed is not patently devoid of merit. In addition, sincethe plaintiff was aware of the settlement and release of the prior litigation involving the sameclaims as raised in this action, she could not claim either surprise or prejudice as a result of theamendment. Mastro, J.P., Florio, Dickerson, Belen and Lott, JJ., concur.