Grincato v. Sbarra

54 A.D.2d 685, 387 N.Y.S.2d 270, 1976 N.Y. App. Div. LEXIS 14233

Opinion

In a negligence action to recover damages for personal injuries, plaintiff appeals from so much of an order of the Supreme Court, Queens County, dated August 12, 1974, as denied her motion for leave to serve an amended bill of particulars. Defendant cross-appeals from so much of the same order as denied his cross motion for summary judgment. Cross appeal dismissed, without costs or disbursements. The cross appeal was not perfected in accordance with the rules of this court (see Howe Ave. Nursing Home v Nafus, 54 AD2d 686 [decided therewith]). Order reversed insofar as appealed from, without costs or disbursements, and motion to serve an amended bill of particulars granted. Plaintiff’s time to serve the amended bill of particulars is extended until 30 days after entry of the order to be made hereon. Under the circumstances outlined here, where there has been a delay by reason of counsel’s professional arrangements and his misunderstanding of his adversary’s consent to a portion of that delay, a meritorious cause with demonstrable injuries should not be foreclosed from a trial on the merits, particularly where no prejudice to defendant has been shown (see Batista v St. Luke’s Hosp., 46 AD2d 806). Hopkins, Acting P. J., Martuscello, Cohalan, Damiani and Shapiro, JJ., concur.