Horvatis v. Norfolk-Western Railroad

133 A.D.2d 545, 519 N.Y.S.2d 1019, 1987 N.Y. App. Div. LEXIS 50065

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: September 30, 1987
• Status: Published

Opinion

— Order unanimously reversed on the law with costs and plaintiffs’ motion granted. Memorandum: Plaintiffs’ motion to amend their bill of particulars to assert as an item of damages a claim for the future institutional care of Richard Horvatis should have been granted. In view of the liberal policy allowing amendment of pleadings even after trial in the absence of prejudice to the opposing party (see, Loomis v Civetta Corinno Constr. Corp., 54 NY2d 18, rearg denied 55 NY2d 801), leave to serve an amended bill of particulars should be freely granted (see, Kerlin v Green, 36 AD2d 892; Bernas v Kepner, 36 AD2d 58). Defendants cannot claim prejudice, since plaintiffs’ medical reports clearly apprised defendants of Richard Horvatis’ deteriorating condition and the possibility of institutional care. Plaintiff Richard Horvatis should be required to submit to a physical examination and to an examination before trial if so requested by defendants (Bernas v Kepner, supra, at 60). (Appeal from order of Supreme Court, Erie County, Joslin, J. — discovery.) Present —Callahan, J. P., Denman, Boomer, Green and Balio, JJ.