ROGERS v. John E. Nicolo, Respondent. (1998)

 Supreme Court erred in denying plaintiffs' cross motion to amend the complaint (see, CPLR 3025[b];  Fahey v. County of Ontario, 44 N.Y.2d 934, 408 N.Y.S.2d 314, 380 N.E.2d 146).   Where, as here, the proposed amendment does not set forth new facts, but merely adds an additional theory of recovery, leave should generally be granted (see, Brewster v. Baltimore & Ohio R.R. Co., 185 A.D.2d 653, 585 N.Y.S.2d 647).  Plaintiffs' delay in seeking to amend the complaint to add new theories of recovery is not sufficient to warrant denial of the cross motion where, as here, the original complaint gave notice of the occurrence giving rise to the proposed new causes of action (see, Walker v. Pepsico, Inc., 248 A.D.2d 1015, 669 N.Y.S.2d 1003).   Moreover, although the court properly determined that plaintiffs could not obtain title to property of the State of New York by adverse possession (cf., Hinkley v. State of New York, 234 N.Y. 309, 137 N.E. 599), that determination would affect only the trespass cause of action.   The court failed to consider the merit of the claims of adverse possession of the disputed property between the high water mark and the low water mark.   Plaintiffs should be allowed to assert claims for adverse possession and prescriptive easement with respect to that property.   Thus, we modify the order by granting plaintiffs' cross motion.

Order unanimously modified on the law and as modified affirmed without costs.

MEMORANDUM: