Bernard Perkins, Appellant-Respondent, v. John Cappelletti, Respondent-Appellant

Bernard Perkins, Appellant-Respondent, v John Cappelletti, Respondent-Appellant. [MAJORITY] Order unanimously modified and, as modified, affirmed, with costs to defendant, in accordance with the following memorandum: Leave to amend the pleadings “shall be freely given” absent prejudice or surprise resulting directly from the delay (CPLR 3025, subd [b]; Fahey v County of Ontario, 44 NY2d 934). Both plaintiff and defendant were equally aware of all the undisputed facts in this case, and the delay neither altered the strength of plaintiff’s case nor foreclosed alternative legal remedies (see Murray v City of New York, 43 NY2d 400). Consequently, Special Term did not abuse its discretion by granting defendant’s motion to interpose a Statute of Limitations affirmative defense. Because the facts are not in dispute and plaintiff’s breach of contract cause of action is governed under the Uniform Commercial Code (§2-312, subd [1], par [a]; § 2-725, subds 2, 1), Special Term erred by not granting defendant’s motion for partial summary judgment dismissing the breach of contract action. (Appeals from order of Monroe Supreme Court, Provenzano, J. — partial summary judgment, amend answer.) Present — Dillon, P.J., Simons, Hancock, Jr., Doerr and Moule, JJ.