In this attorney malpractice action commenced October 30, 1981, defendant appeared by service of a notice of appearance on November 24, 1981 and interposed an answer on or about January 11, 1982. The answer did not assert a defense of lack of personal jurisdiction, nor did defendant object to personal jurisdiction by way of a motion pursuant to CPLR 3211 (a) (8).
More than one year later on February 28, 1983 defendant made the instant motion to, inter alia, amend his answer to add the affirmative defense of lack of personal jurisdiction. Special Term held the motion in abeyance and referred the matter to a referee for a traverse on the issue of service.
Upon defendant's motion to confirm the report of the referee (which had found service improper), Special Term granted the earlier motion to amend the answer and then dismissed the complaint for lack of personal jurisdiction.
Leave to amend pleadings shall be freely given (CPLR 3025 [b]) unless prejudice or surprise results directly from the delay. (Fahey v County of Ontario, 44 N.Y.2d 934.) Defendant here waived the defense of lack of personal jurisdiction by his inaction (CPLR 320 [b]; 3211 [e]). His belated motion to include this defense was made after the Statute of Limitations had expired thereby leaving plaintiffs unable to recommence the action. Granting leave to amend in these circumstances left plaintiff without a remedy. The prejudice is so manifest that the motion to amend should have been denied. (Souchu v J.I. Hass Co., 81 A.D.2d 884; Kennedy v Calta, 70 A.D.2d 930.)
Concur — Sullivan, J.P., Asch, Fein and Ellerin, JJ.