Rinker v. Oberoi

—Order unanimously affirmed with costs. Memorandum: Supreme Court properly granted plaintiffs mo [1001] tion to amend the complaint to add causes of action for fraud and to amend the ad damnum clause to add a claim for punitive damages. “In the absence of prejudice to the nonmoving party and where the amendment is not ‘plainly lacking in merit’ (Sabol & Rice v Poughkeepsie Galleria Co., 175 AD2d 555, 556), leave to amend pleadings should be ‘freely given’ (CPLR 3025 [b])” (Silvin v Karwoski, 242 AD2d 945). Defendant failed to show that he would be prejudiced by the amendment, and plaintiff made a sufficient showing that the causes of action for fraud and the claim for punitive damages are not plainly lacking, in merit. Plaintiff further showed that the causes of action for fraud are separate and distinct from those alleging dental malpractice (see, Simcuski v Saeli, 44 NY2d 442, 453-454; Howe v Ampil, 185 AD2d 520, 521). (Appeal from Order of Supreme Court, Erie County, Mintz, J. — Amend Pleading.) Present — Green, J. P., Hayes, Hurlbutt, Balio and Lawton, JJ.