Gusmerotti v. Martocci
| Decision Date | 28 January 1991 |
| Citation | 169 A.D.2d 813,565 N.Y.S.2d 181 |
| Parties | Kathleen GUSMEROTTI, Respondent, v. Joseph P. MARTOCCI, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Furey, Furey, Lapping, Keller, O'Reilly & Watson, P.C. (Michael G. Nashak, Hempstead, of counsel), for appellant.
Before BROWN, J.P., and HARWOOD, MILLER and RITTER, JJ.
MEMORANDUM BY THE COURT.
In a action, inter alia, to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Suffolk County (Underwood, J.), dated March 14, 1989, which denied his motion to strike the plaintiff's amended bill of particulars and granted the plaintiff's cross motion for leave to serve an amended bill of particulars.
ORDERED that the order is affirmed, without costs or disbursements.
Contrary to the defendant's contentions we find that the court did not improvidently exercise its discretion in granting the plaintiff leave to serve an amended bill of particulars. Notwithstanding the fact that a note of issue had previously been served and filed herein, leave to serve an amended bill may still be granted in the interest of justice, absent a showing of prejudice to the defendant (see, 6 Carmody-Wait 2d N.Y.Prac. § 36:67; 3 Weinstein-Korn-Miller, N.Y.Civ.Prac. p 3042.15). In the instant case, we agree with the Supreme Court's finding that the plaintiff's proposed amended bill did not advance new causes of action and that the defendant would not be prejudiced by its service. Indeed, we find that the proposed amended bill sets forth properly particularized claims apprising the defendant of the exact theories underlying the plaintiff's case. While the plaintiff should have made such disclosures in her original bill, we cannot agree with the defendant that these are new allegations of negligence nor that he will be prejudiced by the service of the amended bill herein. Thus, it was not an improvident exercise of the court's discretion to grant the plaintiff leave to serve her amended bill of particulars (see, Scarangello v. State of New York, 111 A.D.2d 798, 490 N.Y.S.2d 781; Ostrick v. Mount Sinai Hosp., 56 A.D.2d 646, 391 N.Y.S.2d 895; Jones v. Public Taxi of Schenectady, 34 A.D.2d 876, 310 N.Y.S.2d 835).
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Ferreira v. Unico Service Corp.
...Code (12 NYCRR 23-1.7 and 12 NYCRR 23-1.15) in support of his cause of action predicated on Labor Law § 241(6) (see, Gusmerotti v. Martocci, 169 A.D.2d 813, 565 N.Y.S.2d 181; cf., Ross v. Curtis-Palmer Hydro-Elec. Co., 81 N.Y.2d 494, 601 N.Y.S.2d 49, 618 N.E.2d 82). When no prejudice or unf......
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