Opinion
2002-01361
Submitted October 2, 2002.
October 21, 2002.
In a medical malpractice action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Kings County (Spodek, J.), dated December 28, 2001, which denied their motion to strike a second amended bill of particulars, granted the plaintiff's cross motion for leave to serve the second amended bill of particulars, and, sua sponte, vacated the note of issue.
Geisler Gabriele, LLP, Garden City, N.Y. (Lori A. Marano of counsel), for appellants.
Mitchell D. Kessler, New York, N.Y. (Schapiro Reich [Perry S. Reich] of counsel), for respondent.
Before: FRED T. SANTUCCI, J.P., NANCY E. SMITH, GLORIA GOLDSTEIN, HOWARD MILLER, WILLIAM F. MASTRO, JJ.
DECISION ORDER
ORDERED that on the court's own motion, so much of the notice of appeal as purports to appeal as of right from that portion of the order as, sua sponte, vacated the note of issue is deemed to be an application for leave to appeal from that portion of the order, and leave to appeal is granted (see CPLR 5701[c]); and it is further,
ORDERED that the order is affirmed, with costs.
The Supreme Court providently exercised its discretion in granting the plaintiff leave to serve a second amended bill of particulars. Leave to amend a bill of particulars is ordinarily freely given in the absence of prejudice or surprise resulting directly from the delay (see CPLR 3025[b]; McCaskey, Davies Assoc. v. New York City Health Hosps. Corp., 59 N.Y.2d 755). While the plaintiff sought to amend her bill of particulars shortly after the action had been certified ready for trial, the affirmation of her medical expert established a reasonable excuse for the delay and the merits of the proposed amendment (cf. Danne v. Otis El. Corp., 276 A.D.2d 581; Davidian v. County of Nassau, 175 A.D.2d 908; Eggeling v. County of Nassau, 97 A.D.2d 395). Furthermore, contrary to the defendants' contention, mere lateness is not a barrier to the amendment (see Edenwald Contr. Co. v. City of New York, 60 N.Y.2d 957, 959), and there was no showing of significant prejudice or surprise (see Loadholt v. Rams Beer Soda, 273 A.D.2d 446).
Moreover, the Supreme Court providently exercised its discretion in vacating the note of issue upon its own motion (see 202 NYCRR 202.21 [e]; Bassetti v. Nour, 287 A.D.2d 126, 132).
SANTUCCI, J.P., SMITH, GOLDSTEIN, H. MILLER and MASTRO, JJ., concur.