Summary
applying the CPLR § 3025(b) standard for motions to amend pleadings to bills of particulars
Summary of this case from Dockery v. UPAC Site 7 Assocs., LPOpinion
June 9, 1998
Appeal from the Supreme Court, Bronx County (Gerald Esposito, J.).
The motion court properly exercised its discretion in granting plaintiff leave to amend his bill of particulars to include a claim premised upon the decedents lost earnings ( see, Edenwald Contr. Co. v. City of New York, 60 N.Y.2d 957, 958). The amendment, although belated, did not prejudice defendants since, from the inception of the action, defendants were aware that plaintiffs decedent worked and contributed to plaintiffs support. Plaintiff testified to this effect at the General Municipal Law § 50-h hearing and at his deposition ( see, March v. St. Volodymyr Ukranian Catholic Church, 117 A.D.2d 864). Defendants lack of surprise and attendant prejudice respecting this claim is additionally evidenced by their deposition of a nonparty witness on the lost income issue and by their service of demands for employment authorizations. Moreover, to the extent, if any, that the late assertion of the claim caused defendants any prejudice, the court adequately mitigated the prejudice by granting defendants leave to conduct further discovery ( see, O'Neill v. Schlessinger, 86 A.D.2d 842). Under these circumstances, defendants established no ground for a departure from the rule that, ordinarily, "[l]eave [to amend] shall be freely given" (CPLR 3025 [b]; see also, Loomis v. Civetta Corinno Constr. Corp., 54 N.Y.2d 18, 23; Cepeda v. Hertz Corp., 141 A.D.2d 394, 395).
We have considered defendants other arguments and find them to be without merit.
Concur — Milonas, J. P., Wallach, Williams, Tom and Mazzarelli, JJ.