GARRISON III v. (And a Third-Party Action.) (1997)

Appeal from an order of the Supreme Court (Keegan, J.), entered July 23, 1996 in Albany County, which denied plaintiffs' motion for leave to serve an amended complaint.

On August 8, 1991, plaintiff Daniel A. Garrison III, an employee of the Village of Colonie in Albany County, was working as a member of a crew engaged in cleaning a storm sewer drain.   Plaintiff was seriously injured when a canopy door on the sewer cleaning equipment he was operating, called a CamelJet, was struck by a second piece of sewer cleaning equipment, causing the canopy door to disengage and strike plaintiff on the head.

Plaintiff and his wife commenced this action in August 1994 against defendant Super Products Corporation, manufacturer of the CamelJet, and defendant Wm. H. Clark Municipal Equipment Inc., its distributor, alleging causes of action in negligence and strict products liability based upon an inherent design defect in the CamelJet.   Following joinder of issue and the completion of discovery, plaintiffs moved for leave to serve an amended complaint to add a cause of action for breach of implied warranty.   Supreme Court denied the motion and plaintiffs now appeal.

 While leave to amend pleadings should be “freely given” (CPLR 3025 [b] ), the decision to do so rests within the trial court's discretion (see, Edenwald Contr. Co. v. City of New York, 60 N.Y.2d 957, 959, 471 N.Y.S.2d 55, 459 N.E.2d 164) and the exercise of that discretion will not be lightly set aside (see, Allen v. Vuley, 223 A.D.2d 868, 869, 635 N.Y.S.2d 821).

 Here, the record does not contain sufficient evidence that defendants would be significantly prejudiced by the amendment (see, Mathiesen v. Mead, 168 A.D.2d 736, 563 N.Y.S.2d 887).  “Prejudice in this context means that the party opposing the amendment has been hindered in the preparation of its case or has been prevented from taking some measure in support of its position” (Pritzakis v. Sbarra, 201 A.D.2d 797, 799, 607 N.Y.S.2d 470).   The proposed amendment is based upon the same facts as alleged in the original complaint.   Only a different legal theory is asserted (see, Smith v. Industrial Leasing Corp., 124 A.D.2d 413, 414, 507 N.Y.S.2d 511) which, we note, requires proof which is necessarily uniquely intertwined with the existing negligence and strict products liability causes of action (see, Denny v. Ford Motor Co., 87 N.Y.2d 248, 639 N.Y.S.2d 250, 662 N.E.2d 730;  Mortka v. K-Mart Corp., 222 A.D.2d 804, 635 N.Y.S.2d 105).   Although discovery has been completed, there is no evidence that the delay in seeking to interpose the breach of implied warranty claim would “hinder” future discovery or preclude defendants from “taking some measure in support of [their] position” (Pritzakis v. Sbarra, supra, at 799, 607 N.Y.S.2d 470).   Merely because the amendment may require defendants to conduct additional discovery does not, alone, constitute sufficient grounds to justify denial of the motion (see, Smith v Industrial Leasing Corp., supra, at 414, 507 N.Y.S.2d 511).  We do not reach a different conclusion even where, as here, plaintiffs' interrogatory response stated that a breach of warranty claim would not be made (see, England v. Sanford, 167 A.D.2d 147, 148-149, 561 N.Y.S.2d 228, affd 78 N.Y.2d 928, 573 N.Y.S.2d 639, 578 N.E.2d 437).

Finally, insofar as our review of the record does not lead us to conclude that the proposed breach of implied warranty cause of action is plainly lacking in merit, we find that the denial of the motion was unwarranted (compare, Mortka v. K-Mart Corp., supra ).

ORDERED that the order is reversed, on the law, with costs, and motion granted.

PETERS, Justice.

MIKOLL, J.P., and MERCURE, CREW and WHITE, JJ., concur.