Prejudice (or the lack thereof) is the critical consideration in determining whether leave to amend is appropriate (see Connors, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR 3025, C3025:6 ). "Leave to amend a bill of particulars is ordinarily freely given in the absence of prejudice or surprise, unless the amendment is sought on the eve of trial" (Alvarado v Beth Israel Med. Also, the Qualcon defendants highlight that, prior to serving the "supplemental" bill of particulars in February 2016, plaintiff did not allege exacerbation or aggravation of a lumbar spine condition or injury, and the "supplemental" bill of particulars, which the Qualcon defendants returned to plaintiff as "rejected," was without legal effect because it was an amended bill of particulars served without leave of court. The Qualcon defendants oppose the motion to amend, arguing principally that the motion should be denied because plaintiff was aware of the facts underlying the proposed amendment before filing the note of issue and offered no excuse for his inordinate delay in seeking leave to amend, and that permitting the amendment at this point in the litigation would prejudice the Qualcon defendants, forcing them to change their defense strategy. (Although plaintiff does not provide a copy of a proposed amended bill of particulars, he submitted a copy of the prior "supplemental" bill of particulars containing the amendment that plaintiff seeks.) Plaintiff does not offer any excuse for his significant delay in seeking the amendment rather, he argues that the Qualcon defendants would not be prejudiced by it. In February 2018, approximately two years and eight months after the filing of the note of issue, plaintiff made the instant motion to amend his bill of particulars to include the allegations asserted in the previously-described "supplemental" bill of particulars. Vargas v Villa Josefa Realty Corp., 28 AD3d 389 ).īy a decision and order, dated May 4, 2017, Justice Johnson denied the Qualcon defendants' summary judgment motion, and the Appellate Division, First Department, affirmed that order (see 162 AD3d 440 ). " This "supplemental" bill of particulars was, in fact, an amended bill of particulars it asserted a new injury (i.e., aggravation of a pre-existing condition) that was without legal effect because it was served after the filing of the note of issue without leave of court (cf. In February 2016, plaintiff served a "supplemental" bill of particulars in which he formally claimed for the first time that, as a result of the July 2009 motor vehicle accident, he sustained an "aggravation of spinal stenosis with herniated discs at L4-5 and L5-S1 causing acute instability and impingment/compression of the nerve roots into the foramen bilaterally causing cauda equine syndrome resulting in the need for emergent lumbar surgery which consisted of. Approximately six months later, defendants Qualcon Construction, LLC, Sasso and Consolidated Edison Company of New York ("the Qualcon defendants") sought summary judgment dismissing the complaint on the ground that plaintiff did not sustain a "serious injury" within the meaning of Insurance Law § 5102(d). Plaintiff filed a note of issue and certificate of readiness in June 2015. The thrust of plaintiff's allegations was that defendants' negligence caused plaintiff to suffer stenosis in the lumbar aspect of his spine with accompanying disc bulges and herniations, and related sequelae. Plaintiff served a bill of particulars in August 2012 he has supplemented that bill several times. On June 17, 2011, plaintiff commenced this action to recover damages he allegedly sustained as a result of a Jmotor vehicle accident. Plaintiff's motion seeking leave to amend his bill of particulars to include a claim that, as a result of the subject motion vehicle accident, he sustained an aggravation of spinal stenosis with herniated discs at L4-5 and L5-S1, is granted to the extent indicated below. Kalick, Esq., Wilson, Elser, Moskowitz, Edelman & Dicker LLP, White Plains, NY, for defendants Qualcon Construction, LLC, Sasso and Consolidated Edison Company of New York Haquia, Esq., Davis, Saperstein & Salomon, P.C., New York, NY, for plaintiff Qualcon Construction, LLC, TOMCON INDUSTRIES, JAMES SASSO and CONSOLIDATED EDISON COMPANY OF NEW YORK, Defendants. This opinion is uncorrected and subject to revision before publication in the printed Official Reports. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
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