Opinion
February 26, 1996
Appeal from the Supreme Court, Nassau County (Schmidt, J.).
Ordered that the order is reversed insofar as appealed from, as a matter of discretion, with costs, the motion is granted, and the proposed amended answer with cross claim is deemed served.
Since the affirmative defenses sought to be included in the amended answer are meritorious and the plaintiffs failed to establish that they would suffer any prejudice or surprise if the appellant's motion to serve an amended answer were granted, it was an improvident exercise of discretion to deny the motion (see, McCaskey, Davies Assocs. v. New York City Health Hosps. Corp., 59 N.Y.2d 755; Hickey v. Hutton, 182 A.D.2d 801, 802). The court's finding that the plaintiff would be prejudiced because the second and third affirmative defenses refer to insurance coverage is not the type of prejudice necessary to defeat the appellant's motion (see generally, Edenwald Contr. Co. v. City of New York, 60 N.Y.2d 957; Siegel, N.Y. Prac § 237, at 353 [2d ed]). Rosenblatt, J.P., Sullivan, Copertino, Santucci and Goldstein, JJ., concur.