Scarangello v. State

111 A.D.2d 798, 490 N.Y.S.2d 781, 1985 N.Y. App. Div. LEXIS 50043

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 10, 1985
• Status: Published

Opinion

In a wrongful death claim, claimant appeals from an order of the Court of Claims (McCabe, J.) dated January 3,1984, which denied her motion for an order authorizing the service and filing of an amended bill of particulars.

Order reversed, without costs or disbursements, and appellant’s motion granted.

Motions to amend or supplement a bill of particulars are governed by the same standards as those applying to motions to amend pleadings (Kerlin v Green, 36 AD2d 892; 3 Weinstein-Korn-Miller, NY Civ Prac ¶3042.14a). A party may amend his pleadings at any time by permission of the court and leave is to be freely given (CPLR 3025 [b]; 22 NYCRR 1200.12 [b]). While a court has broad discretion in deciding whether leave to amend should be granted, it is considered an improvident exercise of discretion to deny leave to amend in the absence of an inordinate delay and a showing of prejudice to the defendant (see, Pignataro v Balsamo, 108 AD2d 1086; Plattsburgh Distrib. Co. v Hudson Val. Wine Co., 108 AD2d 1043; Cardy v Frey, 86 AD2d 968; see also, Fahey v County of Ontario, 44 NY2d 934).

In the instant case, while there was substantial delay by the claimant in seeking the amendment of her bill of particulars, the State will not be prejudiced by such relief since it was apprised at the outset of the facts and the nature of the claim and claimant’s proposed amendment involves the same transaction and set of facts (see, Plattsburgh Distrib. Co. v Hudson Val. Wine Co., supra, p 1044). In addition, it is noted that contrary to the State’s position, the claimant is not seeking to add causes of action by amending her bill of particulars but rather is seeking to amplify and clarify allegations contained in her claim for damages and original bill of particulars. In view of the facts of the instant case, the court improvidently exercised its discretion in denying the requested relief. Mollen, P. J., Rubin, Lawrence and Kunzeman, JJ., concur.