Opinion
February 15, 1960
Milton M. Mokotoff for plaintiff.
Gilbert Segall ( Harold R. Tyler, Jr., and Harold J. Reynolds of counsel), for defendants.
This is a motion by plaintiff for leave to amend its bill of particulars.
No point is noted by defendants of the fact that the moving affidavit is made by plaintiff's attorney and not by an officer of plaintiff. The opposition is grounded upon the claim that the proposed amendment gives information to the contrary of what is stated in the original bill and that the data now sought to be included are false and are interposed to defeat a pending motion by defendants for summary judgment.
It is the general policy of the courts freely to permit amendments of pleadings in advance of trial ( Harriss v. Tams, 258 N.Y. 229; Holgan Bros. v. Beekman Hosp., 267 App. Div. 815), and I include a bill of particulars in that category.
I cannot conceive of any prejudice to defendants in the allowance of the amendment. There is here no outstanding order of preclusion which might result in the rejection of evidence upon the trial or upon an application for summary judgment. The interposition by way of affidavit of the material contained in the proposed amended bill would be accepted for the purpose of determining whether there was or was not a genuine issue which required a trial in the normal way. To defeat a motion for summary judgment, the response need not necessarily be consistent with the pleading (or the bill), and, if a genuine issue is raised, the court will not resolve the matter of credibility on the affidavits (see cases cited in Thorp v. Pittsburgh Bicentennial Assn., 22 Misc.2d 233).
Accordingly, the motion is granted. However, such leave is permitted upon the following conditions: (1) that the amended bill be verified by an officer of plaintiff having knowledge of the facts, (2) that the bill be served within 15 days after service of a copy of this order with notice of entry, and (3) that plaintiff by such officer appear for and submit to examination before trial upon defendants' notice at a time and place specified therein. If these conditions are not complied with, the motion is denied. Order signed.