Adams v. Burkowski

61 A.D.2d 1134

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 1, 1978
• Docket: Appeal No. 1
• Status: Published

Opinion

Order unanimously reversed, without costs, and motion granted. Memorandum: In this action for damages for personal injuries, Special Term’s denial of plaintiffs motion for leave to serve a supplemental bill of particulars was an improvident exercise of discretion. "Leave to serve an amended bill of particulars, in the absence of a showing of prejudice, should be freely granted.” (Portilla v Boyke, 51 AD2d 539, citing CPLR 3025, subd [b] and 3 Weinstein-Korn-Miller, NY Civ Prac, par 3041.21; see, also, Cossart v Fredenburgh, 50 AD2d 993; Kerlin v Green, 36 AD2d 892.) Here, affidavits supporting the motion, made by plaintiff and one of his attending physicians, were submitted with the proposed supplemental bill of particulars (see Bernas v Kepner, 36 AD2d 58). A statement of readiness had not yet been filed in the action, and the record indicates no prejudice to defendant and no inordinate delay on the part of plaintiff. Plaintiff has also appealed from Special Term’s denial of his motion for leave to serve an amended complaint increasing the ad damnum from $95,000 to $600,000. Where, as here, the motion, which was made before the statement of readiness was filed, was supported by affidavits of plaintiff and a physician (see Gardner v Fyr-Fyter Co., 55 AD2d 816), it was error to deny the motion in the absence of showing of any prejudice to defendants. (Smith v University of Rochester Med. Center, 32 AD2d 736; Kerlin v Green, 36 AD2d 892.) (Appeal from order of Erie Supreme Court—bill of particulars, etc.) Present —Moule, J. P., Cardamone, Simons, Dillon and Hancock, Jr., JJ.