Opinion
September 27, 1996.
Order unanimously modified on the law and as modified affirmed with costs to plaintiff in accordance with the following.
Before: Present Green, J.P., Pine, Wesley, Davis and Boehm, JJ.
Supreme Court improvidently exercised its discretion in granting defendant's motion for leave to serve a second amended answer. It is well settled that, absent surprise or prejudice, leave to amend pleadings is to be "freely given" (CPLR 3025 [b]) and that the determination whether to grant leave to amend is a matter addressed in the first instance to the discretion of the trial court ( see, Edenwald Contr. Co. v City of New York, 60 NY2d 957, 959; Faracy v McGraw Edison Corp., 229 AD2d 463). Here, plaintiff demonstrated that he would be significantly prejudiced by defendant's delayed assertion of the Statute of Limitations as an affirmative defense ( cf., Wirhowski v Hudson Armored Car Courier Serv., 221 AD2d 523; see generally, Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C3025:5, at 356).
In all other respects, the order is affirmed. (Appeal from Order of Supreme Court, Herkimer County, Parker, J. — Amend Pleading.)