Estate of Peter Horan, Respondent, v. Town of Smith-town et al., Appellants

Estate of Peter Horan, Respondent, v Town of Smith-town et al., Appellants. [722 NYS2d 885] [MAJORITY] —In an action, inter alia, for a judgment declaring that the residential zoning classification of the plaintiffs property is unconstitutional and illegal, the defendants appeal, as limited by their brief, from so much of an order of the Supreme Court, Suffolk County (Oliver, J.), dated December 23, 1999, as granted that branch of the plaintiffs motion which was for leave to serve and file an amended complaint. Ordered that the order is affirmed insofar as appealed from, with costs. The Supreme Court providently exercised its discretion in granting that branch of the plaintiffs motion which was for leave to serve and file an amended complaint asserting additional factual allegations and two new causes of action (see, Edenwald Contr. Co. v City of New York, 60 NY2d 957; CPLR 3025 [b]). The proposed amendment does not fundamentally change the nature of the allegations which must be proven by the plaintiff or diminish the defenses available to the defendants (see, Nassi v DiLemme Constr. Corp., 250 AD2d 658). Moreover, the defendants did not demonstrate any prejudice or surprise as a result of the delay (see, Fahey v County of Ontario, 44 NY2d 934; Kalish v Manhasset Med. Ctr. Hosp., 100 AD2d 507). O’Brien, J. P., Ritter, Goldstein and Smith, JJ., concur.