Cherebin v. Empress Ambulance Service, Inc.

Citation841 N.Y.S.2d 277,2007 NY Slip Op 06520,43 A.D.3d 364
Decision Date30 August 2007
Docket Number1139N.
PartiesPHYLLIS CHEREBIN, Appellant, v. EMPRESS AMBULANCE SERVICE, INC., Respondent.
CourtNew York Supreme Court Appellate Division

As the result of an automobile accident on July 21, 2003, plaintiff allegedly suffered neurological injuries from hypoxia, leaving her with severe impairment of her cognitive, speech and memory capabilities. Plaintiff commenced this medical malpractice action in May 2004 and sought leave to amend her bill of particulars in June 2006. Leave was sought to plead an additional theory of negligence, i.e., that defendant failed to use the proper oxygenation device, a bag valve mask, during the period when plaintiff was trapped in the vehicle and was removed to the ambulance. This theory of the case allegedly came to light in late May 2006, approximately three to four weeks after the note of issue was filed, when plaintiff's expert paramedic received and reviewed all of the treating physicians' depositions and other relevant records and transcripts.

Leave to amend pleadings, including a bill of particulars, is to be freely given, absent prejudice or surprise (see CPLR 3025 [b]; Sahdala v New York City Health & Hosps. Corp., 251 AD2d 70 [1998]). Where there is "extended delay in moving to amend, an affidavit of reasonable excuse for the delay in making the motion and an affidavit of merit should be submitted in support of the motion" (Volpe v Good Samaritan Hosp., 213 AD2d 398, 398-399 [1995]). "In the absence of prejudice, mere delay is insufficient to defeat the amendment" (Sheppard v Blitman/Atlas Bldg. Corp., 288 AD2d 33, 34 [2001]). Prejudice requires "some indication that the defendant has been hindered in the preparation of his case or has been prevented from taking some measure in support of his position" (Loomis v Civetta Corinno Constr. Corp., 54 NY2d 18, 23 [1981]).

The motion court improvidently exercised its discretion in denying the motion. While plaintiff's excuse for the delay could have been more compelling, the delay itself was short (three years...

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    • June 21, 2022
    ...the proposed amendment is palpably insufficient or patently devoid of merit (see CPLR 3025[b] ; Cherebin v. Empress Ambulance Serv., Inc., 43 A.D.3d 364, 365, 841 N.Y.S.2d 277 [1st Dept. 2007] ). In this case, this Court dismissed the second amended complaint because of a pleading deficienc......
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    ...prejudicial, see Fellner v. Morimoto, 52 A.D.3d 352, 353, 862 N.Y.S.2d 349 (1st Dep't 2008) ; Cherebin v. Empress Ambulance Serv., Inc., 43 A.D.3d 364, 365, 841 N.Y.S.2d 277 (1st Dep't 2007), or contrary to the law of the case, Flores v. Infrastructure Repair Serv., LLC, 115 A.D.3d at 543–4......
  • Charles v. Suvannavejh
    • United States
    • New York Supreme Court
    • November 17, 2009
    ...and the amendments do not unfairly surprise or otherwise substantially prejudice defendants. Cherebin v. Empress Ambulance Serv., Inc., 43 A.D.3d 364, 365, 841 N.Y.S.2d 277 (1st Dep't 2007); Katechis v. Our Lady of Mercy Med. Ctr., 36 A.D.3d 514, 516, 828 N.Y.S.2d 58 (1st Dep't 2007); Thomp......
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