Empire Vision Center, Inc. v. Wilson

—Order unanimously reversed on the law without costs and motion granted. Memorandum: In this action to enforce a covenant not to compete contained in agreements between plaintiff and one of the defendants, defendants appeal from an order denying their motion for leave to amend their answers to assert an additional affirmative defense. The proposed affirmative defense alleges that the agreements establish a relationship in the nature of a franchise and that they are unenforceable because they do not comply with the requirements of General Business Law article 33 (the Franchise Sales Act). We conclude that the court abused its discretion in denying defendants’ motion to amend their answers. Leave to amend should be freely 992 granted absent prejudice or surprise (CPLR 3025 [b]; Fahey v County of Ontario, 44 NY2d 934, 935), and we cannot conclude that the proposed amendment is patently lacking in merit (see, Almor Assocs. v Town of Skaneateles, 209 AD2d 1009; Washburn v Citibank, 190 AD2d 1057). (Appeal from Order of Supreme Court, Onondaga County, Murphy, J.—Amend Answer.) Present—Denman, P. J., Balio, Lawton, Callahan and Doerr, JJ.