Opinion
December 9, 1977
Appeal from the Monroe Supreme Court.
Present — Moule, J.P., Cardamone, Simons, Hancock, Jr., and Denman, JJ.
Order unanimously reversed, without costs, and motion granted. Memorandum: Plaintiffs seek to amend their complaint a second time. We believe that Special Term's denial of the application was an improvident exercise of discretion. Although the granting of such a motion is within the sound discretion of the court, leave to amend should be freely granted in the absence of a showing of prejudice (CPLR 3025, subd [b]; e.g., Albany Crane Serv. v Pettibone Mulliken Corp., 54 A.D.2d 794). Plaintiffs state reasonable grounds for amendment and the same basic facts are alleged as in the former complaint (see Handley v Mirro Aluminum Co., 52 A.D.2d 1029). The proposed amended complaint merely sets forth additional theories based upon those facts (see Dittmar Explosives v A.E. Ottaviano, Inc., 20 N.Y.2d 498, 502; Cerrato v Crown Co., 58 A.D.2d 721; Deiso v Mobil Oil Corp., 56 A.D.2d 621; Gardner v Fyr-Fyter Co., 55 A.D.2d 816; Watso v City of New York, 39 A.D.2d 960; cf. Yerdon v Baldwinsville Academy, 39 A.D.2d 824). Defendants have made no showing of prejudice, their ability to present a defense at trial will not be affected and there will be no trial delay. Furthermore, that the claims in the proposed amended complaint may have been barred by the Statute of Limitations in a separate action de novo does not affect the granting of relief. There is a relation back as long as the original pleading gives the adverse party sufficient notice of the transactions out of which these claims arise (CPLR 203, subd [e]; Cerrato v Crown Co., supra; see Gardner v Fyr-Fyter Co., supra; Owens v Palm Tree Nursing Home, 50 A.D.2d 865; Palmer v New York City Tr. Auth., 37 A.D.2d 766; cf. Smith v University of Rochester Med. Center, 32 A.D.2d 736). The first amended complaint herein does give such notice and, accordingly, plaintiffs' motion should have been granted.