Opinion
April 6, 1987
Appeal from the Supreme Court, Queens County (Levine, J.).
Ordered that the appeal from the order dated October 24, 1985 is dismissed, without costs or disbursements, as that order was superseded by the order dated January 7, 1986 made upon reargument; and it is further
Ordered that the order dated January 7, 1986 is affirmed insofar as appealed from, without costs or disbursements.
Special Term properly granted the defendant leave to serve an amended answer to interpose the affirmative defense of release. Pursuant to CPLR 3025 leave to amend a pleading should be freely given unless the amendment sought is palpably improper or insufficient as a matter of law (see, Norman v Ferrara, 107 A.D.2d 739, 740), or unless prejudice or surprise directly results from delay in seeking the amendment (see, McCaskey, Davies Assocs. v New York City Health Hosps. Corp., 59 N.Y.2d 755, 757; Fahey v County of Ontario, 44 N.Y.2d 934, 935; Cutwright v Central Brooklyn Urban Dev. Corp., 127 A.D.2d 731). Inasmuch as the plaintiffs had knowledge of the facts underlying the affirmative defense prior to the commencement of the action, the plaintiffs cannot claim that they were surprised or unduly prejudiced by the granting of leave to interpose the defense. Contrary to the plaintiffs' contention, the amendment is not palpably improper or insufficient as a matter of law (see, Lebron v New York City Tr. Auth., 44 N.Y.2d 782; see also, Arbegast v Board of Educ., 65 N.Y.2d 161; cf., Johnston v Fargo, 184 N.Y. 379). Nor did the defendant waive the affirmative defense by not inserting it in its original answer (see, Pegno Constr. Corp. v City of New York, 95 A.D.2d 655). Bracken, J.P., Lawrence, Kunzeman and Spatt, JJ., concur.