Order unanimously reversed, without costs, and motion granted. Memorandum: In an action to recover damages for wrongful death, defendants appeal from an order which denied their motion to amend their answer to assert an affirmative seatbelt defense. Absent prejudice or surprise, leave to amend shall be freely granted (CPLR 3025, subd [b]). Upon consideration of the motion, Special Term should not examine the merits or legal sufficiency of the proposed amendment unless the proposed pleading is clearly and patently insufficient on its face, a circumstance not present here (see De Forte v. Allstate Ins. Co., 66 A.D.2d 1028). Defendants discovered during pretrial examinations that the decedent may not have been wearing a seatbelt at the time of the accident. There can be no surprise to the plaintiff in the assertion of a seatbelt defense, which is relevant only to the question of damages (see Spier v. Barker, 35 N.Y.2d 444). There is also no prejudice to the plaintiff and the defendants' motion should have been granted (see Seip v Esposito, 78 A.D.2d 850; Karras v. County of Westchester, 71 A.D.2d 878; Wardlaw v. Ford Marketing Corp., 53 A.D.2d 610).