(dissenting). There can be ne claim here by the defendants of surprise oy detrimental reliance. It was quite dear that the plaintiff sought to hold the “ builder ” or “ general contractor ’y and named and served possibly the, wrong *51corporation. These two corporations had the same stockholder and the same office and employees. It was not until 1970 that the possible error was discovered during an examination before trial, so we are met with an almost four-year delay in the making of a necessary procedural motion.
While the majority decision should alert the Bar to the need for prompt action, law office loches does not in every case deprive a client with a meritorious claim of the opportunity to attempt ■to sustain his cause of action. The exercise of discretion by the court at Special Term in granting the late motion ¡to amend the summons and complaint to add the additional corporate party defendant, should not ibe disturbed as such, although we would impose costs of $250 on plaintiff’s counsel, payable to the defendant as a sanction because of the delay. (Newell v. Lane, 45 A D 2d 704 [1st Dept., 1974].)
Lupiano and Capozzoli, JJ., concur with Murphy, J., McGrivern, P. J., and Kupferman, J., dissent in an opinion by Kupferman, J.
Order, Supreme Court, New York County entered on March 6, 1974, reversed, on the law, and plaintiff’s motion denied. Appellants shall recover of respondent $40 costs and disbursements of this appeal.