SAYERS v. ALBICOCCO

ORDERED that the order is affirmed insofar as appealed from, without costs or disbursements.

It is well settled that leave to amend a pleading is freely given provided no prejudice or surprise is attributable to the delay (see Fahey v. County of Ontario, 44 N.Y.2d 934; Henderson v. Gulati, 270 A.D.2d 308). Furthermore, the determination of such an application is committed to the broad discretion of the trial court, whose holding will not be overturned lightly (see Herrick v. Second Cuthouse, 64 N.Y.2d 692; Skinner v. Scobbo, 221 A.D.2d 334, 335). This liberal policy favoring leave to amend has been applied to defenses that are waived when omitted from initial pleadings, like the statute of limitations defense at issue here (see e.g. Fahey v. County of Ontario, supra; Henderson v. Gulati, supra; Hickey v. Hutton, 182 A.D.2d 801).

The Supreme Court providently exercised its discretion in granting those branches of the defendant's motion which were for leave to amend his answer to include the affirmative defense that the intentional tort claims in the complaint are barred by the statute of limitations, and to dismiss those portions of the complaint.

FEUERSTEIN, J.P., S. MILLER, FRIEDMANN and COZIER, JJ., concur.