Cardy v. Frey

• Decision Date: 26 February 1982
• Citation: 86 A.D.2d 968,448 N.Y.S.2d 291
• Parties: Susan M. CARDY, by her Parent and Natural Guardian, Harold B. Cardy, and Harold B. Cardy, Individually, Respondents, v. Cynthia M. FREY and Irene Frey, Appellants.
• Court: New York Supreme Court — Appellate Division

Page 291

448 N.Y.S.2d 291

86 A.D.2d 968

Susan M. CARDY, by her Parent and Natural Guardian, Harold B. Cardy, and Harold B. Cardy, Individually, Respondents, v. Cynthia M. FREY and Irene Frey, Appellants.

Supreme Court, Appellate Division, Fourth Department.

Feb. 26, 1982.

Hickey, McHugh & Garlick by Robert Burke, Rochester, for appellants.

Manioci & Mayka by Gerald Manioci, Rochester, for respondents.

Before DILLON, P. J., and HANCOCK, CALLAHAN, DOERR and BOOMER, JJ.

MEMORANDUM:

Defendants appeal from an order permitting plaintiffs 'to amend the bill of particulars to set forth an additional item of damage, namely traumatic epilepsy'. The order also allowed further discovery of medical records and a further physical examination of the infant plaintiff by defendants.

The infant plaintiff was injured in an automobile accident on June 29, 1979. The summons and complaint were served on May 21, 1980 and issue was joined on June 6, 1980. The bill of particulars was served on December 9, 1980. The note of issue and certificate of readiness were filed on January 26, 1981. Prior thereto, an examination before trial had been completed and the infant plaintiff had been examined by defendants' physician.

At a pretrial conference on March 30, 1981, a dispute arose as to whether plaintiffs would be allowed to prove that the infant suffered permanent traumatic epilepsy as a result of the accident. Plaintiffs immediately moved for an order which would authorize the introduction of such evidence and in support thereof submitted affidavits from plaintiffs' attorney and from the infant plaintiffs' attending physician. Those affidavits demonstrate that counsel did not learn of the physician's diagnosis of post traumatic epiepsy until March 5, 1981; that the infant plaintiff was not aware of the diagnosis until March 18, 1981; and that on March 20, 1981 plaintiffs' attorney advised defendants' attorney that proof of epilepsy would be offered at trial.

In granting the motion, the court found that the infant plaintiff would be greatly prejudiced if the application were not granted and, to eliminate the prejudice to defendants which the court perceived, further discovery was authorized. In our view, the court properly exercised its discretion.

Motions for leave to amend or supplement bills of particulars are governed by the same standards as those applying to motions to amend pleadings under CPLR 3025 (subd. (Kerlin v. Green, 36 A.D.2d 892, 320 N.Y.S.2d 200; 3 Weinstein-Korn-Miller, N.Y.Civ.Prac., par. 3042.14a). CPLR 3025 (subd. provides that a party may amend his pleadings at any time by leave of the court and that leave shall be freely given on such terms as may be just. The court is given broad discretion to grant the relief (Siegel, Practice Commentaries, McKinney's Cons.Laws of N.Y., Book 7B, CPLR C3025:4, p. 476; 3 Weinstein-Korn-Miller, N.Y.Civ.Prac., par. 3025.14).

We have repeatedly held that it is an improvident exercise of discretion to deny leave to amend a bill of particulars in the absence of inordinate delay and a showing of prejudice to the defendant (see, e.g., Gardner v. Fyr-Fyter Co., 55 A.D.2d 816, 390 N.Y.S.2d 289; Kerlin v. Green, supra; Smith v. University of Rochester Med. Center, 32 A.D.2d 736, 301 N.Y.S.2d 933). In slightly different contexts, the Court of Appeals has made it clear that it is an abuse of discretion as a matter of law to deny leave to amend pleadings in the absence of 'prejudice or surprise resulting directly from delay' (Fahey v. County of Ontario, 44 N.Y.2d 934, 935, 408 N.Y.S.2d 314, 380 N.E.2d 146; Murray v. City of New York, 43 N.Y.2d 400, 401 N.Y.S.2d 773, 372 N.E.2d 560; see, also, Loomis v. Civetta Corinno Constr. Corp., 54 N.Y.2d 18, 444 N.Y.S.2d 571, 429 N.E.2d 90).

We have also held that where amendment to a bill of particulars 'is sought on the eve of trial a plaintiff must make a further showing that the amendment is justified by submitting an affidavit pointing to the recent discovery of additional facts (usually medical) or otherwise supplying an adequate explanation for the delay.' (Gardner v. Fyr-Fyter Co., supra.) The additional burden has been imposed because of the court's concern that the certificate of readiness rule would be meaningless in the absence of such a showing (Hernandez v. Ezrow, 24 A.D.2d 730, 263 N.Y.S.2d 372). Nonetheless, whether the amendment will...