Achee v. Merrick Vill., Inc.

• Decision Date: 10 August 2022
• Docket Number: 2020–07606,Index No. 707644/16
• Citation: 208 A.D.3d 542,173 N.Y.S.3d 46
• Parties: Christian ACHEE, appellant, v. MERRICK VILLAGE, INC., respondent.
• Court: New York Supreme Court — Appellate Division

208 A.D.3d 542
173 N.Y.S.3d 46

Christian ACHEE, appellant,
v.
MERRICK VILLAGE, INC., respondent.

2020–07606
Index No. 707644/16

Supreme Court, Appellate Division, Second Department, New York.

Argued—March 29, 2022
August 10, 2022

173 N.Y.S.3d 47

Antin, Ehrlich & Epstein, LLP, New York, NY (Samuil Serebryanyy of counsel), for appellant.

Lewis Brisbois Bisgaard & Smith LLP, New York, NY (Nicholas P. Hurzeler and Kenneth J. Kim of counsel), for respondent.

MARK C. DILLON, J.P., COLLEEN D. DUFFY, JOSEPH J. MALTESE, LARA J. GENOVESI, JJ.

173 N.Y.S.3d 48

DECISION & ORDER

208 A.D.3d 542

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Robert J. McDonald, J.), entered September 23, 2020. The order granted the defendant's motion for summary judgment dismissing the complaint and denied the plaintiff's cross motion for leave to amend his bill of particulars.

ORDERED that the order is affirmed, with costs.

The plaintiff commenced this action in 2016 to recover damages for personal injuries he allegedly sustained in 2015. In the complaint and the bill of particulars, the plaintiff alleged that he slipped and fell in a parking lot of the restaurant where he worked due to ice and snow which was allowed to remain on the ground, and that the defendant property owner was negligent, in effect, for failing to remove the ice and snow from the parking lot. The restaurant's lease with the defendant reflected that the restaurant was solely responsible for snow and ice removal from the parking lot. A note of issue and certificate of readiness for trial was filed on or about October 2, 2019. Thereafter, the defendant moved for summary judgment dismissing the complaint. More than six months after filing the note of issue and certificate of readiness for trial, the plaintiff cross-moved for leave to amend the bill of particulars to allege that the lighting in the parking lot was insufficient and was a factor in causing his accident. The Supreme Court granted the defendant's motion and denied the plaintiff's cross motion. The plaintiff appeals.

"Generally, in the absence of prejudice or surprise ..., leave to amend a bill of particulars should be freely granted unless the proposed amendment is palpably insufficient or patently devoid of merit" ( Liese v. Hennessey, 164 A.D.3d 1318, 1319, 83 N.Y.S.3d 618 [internal quotation marks omitted]; see Lynch v. Baker, 138 A.D.3d 695, 697, 30 N.Y.S.3d 126 ). However, "[o]nce discovery...