dissents in part in a memorandum as follows: The plaintiff purchased a disability policy of insurance and claims to have become totally disabled, within the meaning of the policy, approximately one year later, and alleges that the insurer wrongfully denied his claim and repudiated the contract.
The first cause of action is for the sum of $7,000, the amount of the damage to the date that the policy is alleged to have been repudiated. At issue are the second and third causes of action of the amended complaint, which were dismissed at Special Term.
I would give leave to replead the second cause of action by simply taking out the words, in paragraph 29, "and until Plaintiff reaches the age of 65.”
It is a perfectly proper cause of action for the plaintiff to sue for a judgment ordering the insurance company to pay the monthly disability amounts of $1,000 per month "for so long as Plaintiff remains totally disabled”. The additional language *423about reaching the age of 65 is surplusage and cannot be mandated where it is always possible for a disability to terminate. Therefore, while, in its present form, the language goes too far and the second cause deserves to be dismissed, it is obvious that the basic part of the cause is satisfactory.
As this court has only recently stated in Byrne v Fordham Univ. (118 AD2d 525, citing CPLR 3025 [b] and McCaskey, Davies & Assoc. v New York City Health & Hosps. Corp., 59 NY2d 755), "Leave to amend the pleadings 'shall be freely given’ absent prejudice or surprise resulting from the delay involved”.