Angeline Rainone, Appellant, v. William C. France, Respondent

Angeline Rainone, Appellant, v. William C. France, Respondent. [MAJORITY — Per Curiam.] Per Curiam. Appeal from an order of the Supreme Court which granted defendant’s application in a negligence action to serve an amended answer interposing an affirmative defense alleging plaintiff’s delivery of a general release to defendant’s joint tort-feasor. The application was made four and one-half months after service of the original answer without knowledge by defendant of the existence of the release. Plaintiff, who was paid $425 for the release, does not, and of course could not convincingly claim surprise or prejudice. Defendant’s application was made and granted pursuant to CPLR 3025 (subd. [b]) which requires that leave to amend in such cases “ shall be freely given”. We find no basis for appellant’s contention that CPLR 3018 (subd. [b]) in some way inhibits the pleading of the affirmative defense of release by amended answer. Equally tenuous is the argument that relief under CPLR 3025 (subd. [b]) is barred by CPLR 3211 (subd. [e]) as to waiver of certain defenses not raised in the responsive pleading or by motion to dismiss made prior thereto. (See Wachtell, N. Y. Practice under the CPLR, p. 169, n. 127; 4 Weinstein-Korn-Miller, N. Y. Civ. Prac., par. 3211.34.) The granting of the motion was within Special Term’s discretion which may not, upon the papers before us, be disturbed. Order affirmed, without costs. Gibson, P. J., Herlihy, Reynolds and Staley, Jr., JJ., concur; Taylor, J., not voting.