Reuling v. Consolidated Edison Co. of New York, Inc.

Appellate Division of the Supreme Court of New York

Reuling v. Consolidated Edison Co. of New York, Inc.

129 A.D.3d 479, 11 N.Y.S.3d 53

Procedural entryThis page is a short order in Reuling v. Consolidated Edison Co. of New York, Inc.. Read the opinion of the Court — 138 A.D.3d 439 →

Appellate Division of the Supreme Court of the State of New York·Decided June 9, 2015·No. 15363N 117414/08·Published

Opinion

Order, Supreme Court, New York County (Joan M. Kenney, J.), entered January 21, 2015, which, inter alia, denied plaintiffs motion for leave to supplement and amend her bill of particulars, unanimously affirmed, without costs.

The decision to permit an amendment to a pleading or bill of particulars, especially on the eve of trial, is committed to the sound discretion of the IAS court (Lissak v Cerabona, 10 AD3d 308 [1st Dept 2004]). Here, we find the IAS court did not abuse its discretion in denying plaintiff leave to amend to add claims of injuries to her other foot. While plaintiff was aware of the injury to her left foot for more than three years, she inexplicably delayed in seeking her expert’s opinion on the issue of causation and then further delayed in filing the instant motion. We note that the evidence ultimately relied upon by plaintiff’s expert was developed in 2009 (the MRI) and 2011 (Dr. Fish-man’s report), well before the plaintiff filed her note of issue in 2012. In short, the motion was untimely.

We have considered the remaining arguments and find them unavailing.

Concur — Friedman, J.P., Acosta, Moskowitz, Richter and Feinman, JJ.

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Order, Supreme Court, New York County (Joan M. Kenney, J.), entered January 21, 2015, which, inter alia, denied plaintiffs motion for leave to supplement and amend her bill of particulars, unanimously affirmed, without costs.

The decision to permit an amendment to a pleading or bill of particulars, especially on the eve of trial, is committed to the sound discretion of the IAS court (Lissak v Cerabona, 10 AD3d 308 [1st Dept 2004]). Here, we find the IAS court did not abuse its discretion in denying plaintiff leave to amend to add claims of injuries to her other foot. While plaintiff was aware of the injury to her left foot for more than three years, she inexplicably delayed in seeking her expert’s opinion on the issue of causation and then further delayed in filing the instant motion. We note that the evidence ultimately relied upon by plaintiff’s expert was developed in 2009 (the MRI) and 2011 (Dr. Fish-man’s report), well before the plaintiff filed her note of issue in 2012. In short, the motion was untimely.

We have considered the remaining arguments and find them unavailing.

Concur — Friedman, J.P., Acosta, Moskowitz, Richter and Feinman, JJ.

Reuling v. Consolidated Edison Co. of New York, Inc., 129 A.D.3d 479, 11 N.Y.S.3d 53 (N.Y. Ct. App. 2015).

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129 A.D.3d 479 (Reuling v. Consolidated Edison Co. of New York, Inc.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Opinion

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