
    Elaine G. Parker et al., Appellants, v Patricia Soper, Respondent.
    (Appeal No. 1.)
   Appeal unanimously dismissed with costs. Memorandum: Plaintiffs appeal from an order granting defendant’s motion for summary judgment. The appeal must be dismissed because the order was entered on default. Plaintiffs’ failure to submit papers in opposition to defendant’s motion for summary judgment precludes appellate challenge to the court’s order granting such motion (CPLR 5511; Flake v Van Wagenen, 54 NY 25, 27-28; Lumbermen’s Mut. Cas. Co. v Fireman’s Fund Am. Ins. Co., 117 AD2d 588; Manhattan 30 Corp. v Nassau County, 100 AD2d 576).

Plaintiffs also appeal from an earlier order which granted defendant’s motion for leave to serve an amended answer interposing a counterclaim. It is well established that leave to amend the pleadings "shall be freely given” absent prejudice or surprise resulting directly from the delay in moving to amend (CPLR 3025 [b]; Fahey v County of Ontario, 44 NY2d 934, 935). In this case, there was no prejudice or surprise to the plaintiffs. The counterclaim merely contained a request for affirmative declaratory relief based on a theory that was already available to defendant as a defense (see, RPAPL 1517, 1521; Corning y Lehigh Val. R. R. Co., 21 Misc 2d 706, 707, revd on the facts 14 AD2d 156). Because the counterclaim pleaded no new facts or legal theories, the court did not abuse its discretion in granting defendant leave to amend her answer to assert it. (Appeal from order of Supreme Court, Jefferson County, Gilbert, J. — summary judgment.) Present— Denman, J. P., Pine, Lawton, Davis and Lowery, JJ.  