
    Gary F. Frenz et al., Respondents, v Sudhakar R. Mettu et al., Appellants.
    [789 NYS2d 897]
   In an action, inter alia, to recover damages for medical malpractice, the defendants appeal from a judgment of the Supreme Court, Westchester County (Bellantoni, J.), dated January 23, 2004, which, upon a jury verdict, and upon an order of the same court entered October 8, 2003, granting the plaintiffs’ motion for reargument, and upon reargument, in effect, vacating that portion of its prior order entered May 15, 2003, granting the defendants’ motion for leave to amend their answers to plead the affirmative defense of setoff as provided by General Obligations Law § 15-108, and denying that motion, is in favor of the plaintiff and against them in the principal sum of $395,000.

Ordered that the judgment is reversed, on the law and as a matter of discretion, with costs, so much of the order dated October 8, 2003, as, upon granting the plaintiffs’ motion for re-argument, in effect, vacated that portion of the order entered May 15, 2003, granting the defendants’ motion for leave to amend their answers to plead the affirmative defense of setoff as provided by General Obligations Law § 15-108 and denied that motion is vacated, and upon reargument, so much of the order entered May 15, 2003, as granted the motion is adhered to, and the matter is remitted to the Supreme Court, Westchester County, for the entry of an amended judgment in accordance herewith.

In light of the plaintiffs failure to demonstrate prejudice or surprise, the Supreme Court improvidently exercised its discretion by, upon reargument, in effect, vacating that portion of its prior order entered May 15, 2003, granting the defendants’ motion for leave to amend their answers to plead the affirmative defense of setoff as provided by General Obligations Law § 15-108 and denying that motion (see CPLR 3025 [b]; Whalen v Kawasaki Motors Corp., U.S.A., 92 NY2d 288 [1998]; McCaskey, Davies & Assoc. v New York City Health & Hosps. Corp., 59 NY2d 755, 757 [1983]; Fahey v County of Ontario, 44 NY2d 934, 935 [1978]).

In light of this determination, the defendants’ remaining contentions need not be reached. Prudenti, P.J., Cozier, Ritter and Spolzino, JJ., concur.  