Opinion
November 28, 1994
Appeal from the Supreme Court, Nassau County (Levitt, J.).
Ordered that the order is affirmed, with costs.
It is well established that leave to amend shall be freely given pursuant to CPLR 3025 (b), absent prejudice or surprise. The determination to grant leave rests with the discretion of the court and should be made on a case-by-case basis (see, Mayers v D'Agostino, 58 N.Y.2d 696; Fahey v. County of Ontario, 44 N.Y.2d 934; Matter of Department of Social Servs. [Katherine McL.] v Jay W., 105 A.D.2d 19; Fulford v. Baker Perkins, Inc., 100 A.D.2d 861). Upon our review of the record, we conclude that the Supreme Court did not improvidently exercise its discretion in granting the defendants leave to amend their answers. At the time of joinder of issue, the defense of res judicata was not available as the Workers' Compensation determinations on the plaintiffs' claims had not yet been made. In addition, the delay in making the motion to amend after these determinations was not so lengthy to be considered an abuse of the procedure (cf., Gallo v. Aiello, 139 A.D.2d 490). There is no merit to the plaintiffs' contention that they were prejudiced because of the defendants' delay in making the motion for leave to amend their answers to assert the defense of res judicata with respect to the Workers' Compensation determinations. The plaintiffs were entitled to appeal from the Workers' Compensation determinations but chose not to do so. Bracken, J.P., Balletta, Ritter, Pizzuto and Florio, JJ., concur.