Baby Togs, Inc. v. Faleck & Margolies, Inc.

239 A.D.2d 278, 658 N.Y.S.2d 842, 1997 N.Y. App. Div. LEXIS 5422

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 22, 1997
• Status: Published

Opinion

Order, Supreme Court, New York County (Alfred Toker, J.), entered May 20, 1996, which denied plaintiffs motion for leave to amend its bill of particulars, unanimously affirmed, with costs.

In light of the fact that plaintiff did not seek to amend its original bill of particulars, which limited the scope of damages to 65 checked items of inventory out of 1,060 contained in a warehouse reconciliation report, to include all 1,060 items until the eve of trial, nearly seven years after filing its original bill of particulars, despite the fact that it could have done so from the outset, and given the severe prejudice to defendants due to the lack of discovery with respect to the remaining items contained in the report, we find that the court properly exercised its discretion in denying leave to amend (Vega v Lenox Hill Hosp., 235 AD2d 302). Plaintiff has not provided adequate substantiation for its assertion that the error in the original bill of particulars was inadvertent or typographical. Concur—Sullivan, J. P., Milonas, Ellerin, Tom and Mazzarelli, JJ.