Opinion
September 29, 2000.
Appeal from Order of Supreme Court, Erie County, Mintz, J. — Amend Pleading.
PRESENT: GREEN, J. P., HAYES, HURLBUTT, BALIO AND LAWTON, JJ.
Order unanimously affirmed with costs.
Memorandum:
Supreme Court properly granted plaintiff's motion 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 A.D.2d 555, 556), leave to amend pleadings should be 'freely given ' (CPLR 3025 [b])" ( Silvin v Karwoski, 242 A.D.2d 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 N.Y.2d 442, 453-454; Howe v. Ampil, 185 A.D.2d 520, 521).