Opinion
December 18, 1975
Appeal from an order of the Supreme Court at Special Term, entered March 1, 1975 in Albany County, which allowed plaintiff to serve a supplemental bill of particulars. The granting of a motion to amend a bill of particulars is within the sound discretion of the court (Hrusko v Public Serv. Coordinated Tr. Corp., 40 A.D.2d 659). In the absence of a showing of prejudice, as is the situation here, leave to amend or supplement a bill of particulars should be freely granted (CPLR 3025, subd [b]; Maloney v Union Free School Dist. No. 7, 46 A.D.2d 789). The plaintiff does not seek to allege a new theory of liability but simply an aggravation of a pre-existing condition and the permanency of a condition previously not thought to be permanent. The original bill of particulars gave notice that the injuries complained of were superimposed upon the pre-existing condition. It is noted that the order appealed from provided that, at the option or request of defendant, the plaintiff shall submit to a physical examination and a further examination before trial. Order affirmed, with costs to plaintiff. Herlihy, P.J., Kane, Koreman, Larkin and Reynolds, JJ., concur.