Videobox Networks v. Durst

259 A.D.2d 429, 686 N.Y.S.2d 762, 1999 N.Y. App. Div. LEXIS 2819

Opinion

Order, Supreme Court, New York County (Alfred Toker, J.H.O.), entered on or about February 10, 1998, which, in an action to recover for damages to plaintiff’s building allegedly caused by construction work to defendants’ adjacent building, denied plaintiff’s motion to adjourn the trial, “supplement” its amended bill of particulars and file additional expert witness disclosure, unanimously affirmed, with costs.

Plaintiffs eve-of-trial motion to change its theory of damages from lost rental income and cost of repair to reduced rental value was properly denied on the ground that the delay in asserting this new theory was both prejudicial and inexcusable (see, Boland v Koppelman, 251 AD2d 176; Wilson v Haagen-Dazs Co., 215 AD2d 338, lv dismissed 86 NY2d 838). Concur— Rosenberger, J. P., Tom, Wallach and Mazzarelli, JJ.