Aroneck v. Atkin

I respectfully dissent. In my view it was an improvident exercise of judicial discretion to deny an application for all potential parties to be included thereby permitting a determination at one trial of all the pending and probable issues inherent in this lawsuit. Leave to amend pleadings “shall be freely given” absent prejudice or surprise resulting directly from a delay (CPLR 3025, subd [b]; Fahey v County of Ontario, 44 NY2d 934, revg 55 AD2d 1034). CPLR 3025 (subd [b]) contains no time limit and the motion may be made at any time. It was not only proper but necessary for new counsel to make the motion herein rather than waiting until the eve of trial or making application before the court during the course of trial (see Gardner v Fyr-Fyter Co., supra). A review of the record discloses that unnamed parties have a probable interest and could be necessary to the disposition of the issues in the course of one trial. It is in the interest of justice and judicial economy that this motion was made. It was therefore improper to deny the application where no *981surprise or prejudice is present. CPLR 3025 (subd [b]) was specifically designed to accommodate the application made herein. (Appeal from order of Monroe Supreme Court — amend complaint.) Present — Cardamone, J. P., Hancock, Jr., Schnepp, Callahan and Moule, JJ.

— Order affirmed, with costs. Memorandum: We affirm because plaintiffs have not demonstrated that they have an interest in the litigation; nor have they made a showing of special or extraordinary circumstances (Gardner v Fyr-Fyter Co., 55 AD2d 816). All concur, except Callahan, J., who dissents and votes to reverse the order and grant the motion, in the following memorandum.