
    John Olewnik, Appellant, v Benjamin Bernstein, Respondent.
    [623 NYS2d 437]
   —Order unanimously reversed on the law without costs, motion denied and complaint reinstated. Memorandum: Supreme Court erred in granting defendant’s motion to amend the answer and for summary judgment dismissing the complaint pursuant to CPLR 3211 (a) (5), based on the amended answer. Defendant’s motion was brought almost four years after commencement of the action. We conclude, under the circumstances, that granting the motion to amend the answer was an abuse of discretion (see, CPLR 3025). (Appeal from Order of Supreme Court, Erie County, Mintz, J.—Amend Answer.) Present—Pine, J. P., Fallon, Wesley, Callahan and Davis, JJ.  