Sampson v. Barber Salvage Co.

78 A.D.2d 977, 433 N.Y.S.2d 676, 1980 N.Y. App. Div. LEXIS 13742

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 13, 1980
• Status: Published

Opinions

Order affirmed, without costs. Memorandum: Plaintiff appeals from an order which denied his motion for leave to serve a supplemental bill of particulars. He was injured on July 20,1976 when struck at a construction site by beams being transported by defendant, under a construction contract with plaintiff’s employer. Suit was commenced on May 27,1977. A bill of particulars was served October 14, 1977, and note of issue and certificate of readiness were filed on March 8,1978. On August 21,1979 plaintiff moved for an order allowing service of a supplemental bill of particulars. Leave to serve an amended bill of particulars should not be granted where a certificate of readiness has been filed, except upon a showing of special and extraordinary circumstances; we have previously denied such applications upon the failure to make such a showing (Gardner v Fyr-Fyter Co., 55 AD2d 816; McLeod v Duffy, 53 AD2d 1011). Here, the hearsay affidavit of plaintiff’s attorney, which states that he recently learned from employees or former employees of defendant that it had “supervisory responsibilities with regard to the plaintiff herein, and also that such defendant had built, and was under a duty to maintain [the] roadway where the accident occurred”, fails to provide the necessary circumstances (Shea v Pellicano, 29 AD2d 840, app dsmd 22 NY2d 753). All concur, except Schnepp and Callahan, JJ., who dissent and vote to reverse and grant the motion, in the following memorandum.