Tanzi v. Tanzi , 666 N.Y.S.2d 497 ( 1997 )

—In an action, inter alia, to recover damages for breach of fiduciary duty and breach of contract, the defendant Carlo Tanzi, Sr., appeals from so much of an order of the Supreme Court, Suffolk County (Doyle, J.), entered November 14, 1996, as granted the plaintiffs’ cross motion for leave to serve an amended complaint. In their brief on appeal, the plaintiffs make an application to strike pages 10 through 274 of the record on appeal.

Ordered that the application is granted (see, CPLR 5526), and pages 10 through 274 of the record are deemed stricken and have not been considered; and it is further,

Ordered that the order is affirmed insofar as appealed from; and it is further,

Ordered that the respondents are awarded one bill of costs.

Leave to amend a complaint should be freely granted, unless the proposed amendment prejudices or surprises the opposing party, is palpably insufficient as a matter of law, or is totally devoid of merit (see, Del Bourgo v 138 Sidelines Corp., 208 AD2d 795). The amended complaint, which is based primarily upon the same transactions and occurrences as the original complaint, did not result in prejudice or surprise, and it cannot be said that the amendment is palpably insufficient as a matter of law or totally devoid of merit. Bracken, J. P., Thompson, Goldstein and Lerner, JJ., concur.