Opinion
May 22, 1979
Appeal from the Onondaga Supreme Court.
Present — Cardamone, J.P., Simons, Hancock, Jr., Callahan and Witmer, JJ.
Order unanimously affirmed, with costs to defendant. Memorandum: Plaintiffs appeal from a denial of their motion for permission to amend their complaint in an action seeking damages for alleged malpractice of the defendant, an architectural corporation, in negligently and carelessly carrying out its contract of employment dated April 24, 1974 in which it undertook to perform certain services in connection with a shopping mall development. The summons and complaint were served on March 19, 1975. The motion for permission to amend was not made until September 8, 1978. In the interim two of defendant's witnesses had died — defendant's president and another corporate officer, the executive vice-president who was the architect in charge of the job and who negotiated the employment contract. The proposed complaint, in addition to setting forth additional causes of action for negligent misrepresentation and breach of contract, contains new factual allegations pertaining to a different written agreement dated August 1, 1973 and to alleged oral representations made by defendant including the representation that the mall could be constructed for a certain sum. Plaintiffs have offered no explanation for their failure to include these factual allegations in the original complaint. While the general rule is that permission to amend pleadings should be freely granted in the absence of a showing of prejudice (CPLR 3025, subd [b]), we cannot say that under the circumstances here Special Term abused its discretion in denying the motion (see Gross v Russo, 54 A.D.2d 706; De Fabio v. Nadler Rental Serv., 27 A.D.2d 931; Lentini v. St. Vincent's Hosp. of Borough of Richmond, 19 A.D.2d 652; City Bank Farmers Trust Co. v. Geffen, 18 A.D.2d 790).