Torres v. New York City Transit Authority

78 A.D.3d 419, 913 N.Y.S.2d 653

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 4, 2010
• Status: Published

Opinion

Order, Supreme Court, New York County (Harold B. Beeler, J.), entered August 12, 2009, which granted plaintiffs motion for leave to amend her bill of particulars, unanimously affirmed, without costs.

Although plaintiff waited until after the note of issue was filed to move to amend the bill of particulars, and failed to provide a reasonable excuse for the delay, we decline to hold that the motion court abused its discretion in granting the motion given the lack of prejudice to defendant and the fact that plaintiffs initial bill of particulars provided notice of the theory of decedent’s accident that plaintiff seeks to add. Under these circumstances, mere delay is insufficient to defeat the amendment, especially given that the delay was mitigated by the court’s vacating of the note of issue and granting defendant additional discovery in connection therewith (see Cherebin v Empress Ambulance Serv., Inc., 43 AD3d 364 [2007]). Concur— Tom, J.P., McGuire, Acosta, Renwick and Freedman, JJ.