Petrino v. Amarga

In an action to recover damages for malicious prosecution, the plaintiff appeals from an order of the Supreme Court, Queens County (LeVine, J.), dated July 9, 1986, which granted the defendants’ motion for leave to serve an amended answer.

Ordered that the order is affirmed, with costs.

The defendants, in their answer, failed to deny paragraph 5 of the complaint which alleged that the defendants’ false testimony before the Nassau County Grand Jury resulted in the plaintiff’s being indicted for grand larceny in the second degree. That allegation was, therefore, deemed admitted. The defendants subsequently moved for leave to serve an amended answer setting forth a denial of paragraph 5 insofar as it alleged false testimony by the defendants.

It is well settled that leave to amend pleadings should be *692freely granted, absent prejudice or surprise to the nonmoving party (see, CPLR 3025; Loomis v Civetta Corinno Constr. Corp., 54 NY2d 18, rearg denied 55 NY2d 801). Here, we find that no prejudice or surprise would accrue to the plaintiff as the defendants’ denial of the false testimony allegation was clearly set forth in their motion for summary judgment made prior to their motion to amend their answer. Having received notice that the defendants contested one of the basic underlying allegations necessary for liability, the plaintiff cannot now claim surprise or prejudice.

We have examined the plaintiff’s other contentions and find them to be without merit. Thompson, J. P., Weinstein, Kunzeman and Harwood, JJ., concur.