
    Phyllis C. Greene, Appellant, v James Fitzpatrick, Respondent.
    (Appeal No. 1.)
   Order unanimously affirmed without costs. Memorandum: In this action by plaintiff to set aside certain conveyances of real property, Special Term properly denied plaintiff’s motion for summary judgment. There are triable issues of fact concerning the intention of the parties when they executed a promissory note and mortgage regarding the Wellsville property, whether there was a debt owed by plaintiff to defendant and whether the Wellsville property was intended as security. The court did not abuse its discretion in permitting defendant to amend his answer. Leave to amend shall be freely given (CPLR 3025 [b]) and the proposed amendment does not add a new theory or cause of action and would not prejudice the plaintiff (see, Cutwright v Central Brooklyn Urban Dev. Corp., 127 AD2d 731). (Appeal from order of Supreme Court, Allegany County, Sprague, J.— summary judgment.) Present — Dillon, P. J., Denman, Boomer, Green and Davis, JJ.  