Opinion
December 7, 1982
Order, Supreme Court, New York County (Orlando, J.), entered September 18, 1981, denying defendant's motion to amend its answer to plead that the action is time barred and for summary judgment dismissing the complaint, unanimously reversed, on the law, the motion granted and the complaint dismissed, without costs. Pursuant to written contract, in January, 1977 plaintiff was retained by defendant to act as a collection agent for delinquent out-patient accounts. In pertinent part, this contract provided that "[n]o action shall lie * * * upon any claim based upon this contract * * * unless such action shall be commenced within six (6) months of the termination of this contract." Plaintiff terminated the contract in April, 1978 by ceasing to do further collection work because of defendant's alleged breach. More than six months later, in February, 1979, plaintiff instituted action. Defendant's original answer was served and filed in September, 1979 and in it defendant, inter alia, denied the allegations in the complaint that this action was timely commenced. Discovery has been completed. On the eve of trial in August, 1981, defendant moved to amend its answer and plead that the action is time barred. A party may move to amend its pleading at any time by leave of the court and such leave is to be freely given (CPLR 3025, subd [b]), unless prejudice or surprise results directly from the delay ( Fahey v County of Ontario, 44 N.Y.2d 934). Plaintiff was on notice since 1979 that defendant had put in issue the timeliness of the action. In view of the fact that plaintiff does not persuasively demonstrate that it was either prejudiced or surprised by the delay, and because it is clear that the action was not timely brought, this action is time barred and it was an abuse of discretion for Trial Term to deny the motion.
Concur — Sullivan, J.P., Ross, Silverman, Bloom and Alexander, JJ.