Kim v. Cohen

146 A.D.2d 747, 537 N.Y.S.2d 69, 1989 N.Y. App. Div. LEXIS 898

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 30, 1989
• Status: Published

Opinion

— In an action to recover damages for personal injuries, etc., the defendants appeal from so much of an order of the Supreme Court, Westchester County (Rubenfeld, J.), entered May 22, 1987, as, inter alia, denied their motion to strike the plaintiffs’ third amended bill of particulars and certain medical reports and to preclude evidence at trial related to alleged new injuries and granted the plaintiffs’ cross motion for leave to serve a third amended bill of particulars and additional medical reports.

Ordered that the order is affirmed, insofar as appealed from, with costs.

The trial court properly exercised its discretion in granting the plaintiffs’ cross motion pursuant to CPLR 3025 (b) for leave to serve a third amended bill of particulars and additional medical reports. Absent prejudice or surprise such motions are to be liberally granted (see, e.g., Bossert v Jay Dee Transp., 114 AD2d 833; Simino v St. Mary’s Hosp., 107 AD2d 800). Although we are mindful of the policy that judicial discretion in allowing such amendments in an action which has long been certified ready for trial should be discrete, circumspect, prudent and cautious (Balport Constr. Co. v New York Tel. Co., 134 AD2d 309, 311-312; Alexander v Seligman, 131 AD2d 528), where, as here, no inordinate delay in seeking the amendment is evident and the defendants have failed to demonstrate how they will be prejudiced by service of the proposed amended bill and additional medical reports, the amended bill and reports which appear simply to amplify the claim of injuries stated in the original bill were properly allowed (see, Loomis v Civetta Corinno Constr. Corp., 54 NY2d 18, 23, rearg denied 55 NY2d 801; Bossert v Jay Dee Transp., supra; Simino v St. Mary’s Hosp., supra). Mollen, P. J., Thompson, Rubin and Spatt, JJ., concur.