Patruno v. Mobil Oil Corp.

Appellate Division of the Supreme Court of New York

Patruno v. Mobil Oil Corp.

171 A.D.2d 408

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMarch 5, 1991

StatusPublished

This text of 171 A.D.2d 408 (Patruno v. Mobil Oil Corp.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Patruno v. Mobil Oil Corp., 171 A.D.2d 408 (N.Y. Ct. App. 1991).

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Opinion

Order, Supreme Court, New York County (Elliott Wilk, J.), entered June 5, 1990, which, inter alia, granted plaintiffs’ motion for leave to serve an amended complaint and a supplemental bill of particulars conditioned on defendant having leave to seek an award of attorneys’ fees for costs occasioned by such amendments, unanimously affirmed, with costs.

Plaintiffs’ original complaint alleged that on January 2, [409]*409988, plaintiff was injured while attempting to disconnect from his truck a vapor recovery arm on defendant’s premises. During discovery, it was revealed that Michael Patruno believed he was injured while pulling on the ring of the vapor recovery arm. However, further discovery revealed that although there were no rings on defendant’s vapor recovery arms, product tubes, which look very much like vapor recovery arms, do have rings. By motion dated March 28, 1990, plaintiffs sought leave to serve an amended complaint and a second supplemental response to defendant’s demand for a bill of particulars to correct their mistake, changing the identity of a vapor recovery arm to a product tube.

The court did not abuse its discretion in granting plaintiffs leave to serve an amended complaint and bill of particulars since defendant did not demonstrate that significant prejudice would result from the amendments (CPLR 3025 [b], [c]; Edenwald Contr. Co. v City of New York, 60 NY2d 957, 959). Indeed, the court took adequate measures to protect defendant’s rights by conditioning the grant on defendant’s ability to recover attorneys’ fees for costs occasioned by such amendments (see, Haven Assocs. v Donro Realty Corp., 96 AD2d 526). Finally, since plaintiffs’ attorney represented in a supporting affidavit that he had personal knowledge of the facts of the case, it was not necessary for Michael Patruno to submit his own affidavit in support of the motion (see, Davidowitz v Dixie Assocs., 59 AD2d 659). Concur — Murphy, P. J., Milonas, Ellerin, Kupferman and Rubin, JJ.

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Order, Supreme Court, New York County (Elliott Wilk, J.), entered June 5, 1990, which, inter alia, granted plaintiffs’ motion for leave to serve an amended complaint and a supplemental bill of particulars conditioned on defendant having leave to seek an award of attorneys’ fees for costs occasioned by such amendments, unanimously affirmed, with costs.

Plaintiffs’ original complaint alleged that on January 2, [409]*409988, plaintiff was injured while attempting to disconnect from his truck a vapor recovery arm on defendant’s premises. During discovery, it was revealed that Michael Patruno believed he was injured while pulling on the ring of the vapor recovery arm. However, further discovery revealed that although there were no rings on defendant’s vapor recovery arms, product tubes, which look very much like vapor recovery arms, do have rings. By motion dated March 28, 1990, plaintiffs sought leave to serve an amended complaint and a second supplemental response to defendant’s demand for a bill of particulars to correct their mistake, changing the identity of a vapor recovery arm to a product tube.

The court did not abuse its discretion in granting plaintiffs leave to serve an amended complaint and bill of particulars since defendant did not demonstrate that significant prejudice would result from the amendments (CPLR 3025 [b], [c]; Edenwald Contr. Co. v City of New York, 60 NY2d 957, 959). Indeed, the court took adequate measures to protect defendant’s rights by conditioning the grant on defendant’s ability to recover attorneys’ fees for costs occasioned by such amendments (see, Haven Assocs. v Donro Realty Corp., 96 AD2d 526). Finally, since plaintiffs’ attorney represented in a supporting affidavit that he had personal knowledge of the facts of the case, it was not necessary for Michael Patruno to submit his own affidavit in support of the motion (see, Davidowitz v Dixie Assocs., 59 AD2d 659). Concur — Murphy, P. J., Milonas, Ellerin, Kupferman and Rubin, JJ.

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171 A.D.2d 408, Counsel Stack Legal Research, https://law.counselstack.com/opinion/patruno-v-mobil-oil-corp-nyappdiv-1991.

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