VICKERS v. VICKERS

Ordered that the order is affirmed, with costs, the proposed second amended complaint is deemed served, and the defendant's time to serve an answer thereto is extended until 20 days after service upon her of a copy of this decision and order, with notice of entry.

Contrary to the defendant's contentions, it was not improper for the Supreme Court, Suffolk County, to consider the plaintiff's motion (see, CPLR 2219, 2221; 22 NYCRR 202.3 [b]; cf., Dalrymple v Martin Luther King Community Health Center, 127 A.D.2d 69).

Further, as noted by this court, "[l]eave to amend may be sought `at any time' and `shall be freely given' absent prejudice or surprise resulting directly from the delay (CPLR 3025, subd [b]; see Fahey v County of Ontario, 44 N.Y.2d 934; 3 Weinstein-Korn-Miller, N Y Civ Prac, pars 3025.14, 3025.16)" (Kitchner v Kitchner, 100 A.D.2d 954-955). The record does not indicate that the defendant was surprised or prejudiced by the plaintiff's motion to serve a second amended complaint (see, Kitchner v Kitchner, supra; see also, Barnes v County of Nassau, 108 A.D.2d 50, 52).

Accordingly, under the circumstances, it cannot be said that the Supreme Court abused its discretion by granting the plaintiff's motion. Thompson, J.P., Lawrence, Rubin, Kunzeman and Sullivan, JJ., concur.