Gusmerotti v. Martocci

169 A.D.2d 813, 565 N.Y.S.2d 181, 1991 N.Y. App. Div. LEXIS 933

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 28, 1991
• Status: Published

Opinion

In a action, inter alia, to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Suffolk County (Underwood, J.), dated March 14, 1989, which denied his motion to strike the plaintiff’s amended bill of particulars and granted the plaintiff’s cross motion for leave to serve an amended bill of particulars.

Ordered that the order is affirmed, without costs or disbursements.

Contrary to the defendant’s contentions we find that the court did not improvidently exercise its discretion in granting the plaintiff leave to serve an amended bill of particulars. Notwithstanding the fact that a note of issue had previously been served and filed herein, leave to serve an amended bill may still be granted in the interest of justice, absent a showing of prejudice to the defendant (see, 6 Carmody-Wait 2d § 36:67; 3 Weinstein-Korn-Miller, NY Civ Prac ¶ 3042.15). In the instant case, we agree with the Supreme Court’s finding that the plaintiff’s proposed amended bill did not advance new causes of action and that the defendant would not be prejudiced by its service. Indeed, we find that the proposed amended bill sets forth properly particularized claims apprising the defendant of the exact theories underlying the plaintiffs case. While the plaintiff should have made such disclosures in her original bill, we cannot agree with the defendant that these are new allegations of negligence nor that he will be prejudiced by the service of the amended bill herein. Thus, it was not an improvident exercise of the court’s discretion to grant the plaintiff leave to serve her amended bill of particulars (see, Scarangello v State of New York, 111 AD2d 798; Ostrick v Mount Sinai Hosp., 56 AD2d 646; Jones v Public Taxi, 34 AD2d 876). Brown, J. P., Harwood, Miller and Ritter, JJ., concur.