Miess v. Walkowiak

27 A.D.2d 797, 278 N.Y.S.2d 1022, 1967 N.Y. App. Div. LEXIS 4778

Opinion

Order unanimously reversed, without costs, and motion denied. Memorandum: There is insufficient support in the record for the order made three years after the accident and 18 months after plaintiff’s original bill had been served. “A motion for leave to serve an amended bill of particulars must be supported by an affidavit of a person with knowledge of the facts ” (6 Carmody-Wait 2d, New York Practice, § 36:67; Montondo v. Petty, 21 A D 2d 975). The hearsay affidavit of plaintiff’s attorney and the minutes of her examination before trial fail to show that the new particulars were unknown when the original bill was served and show no facts excusing her delay in seeking the relief. (Appeal from order of Erie Special Term granting plaintiff’s motion to serve an amended bill of particulars.) Present—Bastow, J. P., Goldman, Henry, Del Vecchio and Marsh, JJ.