March v. St. Volodymyr Ukranian Catholic Church

• Citation: 117 A.D.2d 864,498 N.Y.S.2d 578
• Parties: William MARCH et al., Respondents, v. ST. VOLODYMYR UKRANIAN CATHOLIC CHURCH, Appellant.
• Decision Date: 13 February 1986
• Court: New York Supreme Court Appellate Division

Page 578

498 N.Y.S.2d 578

117 A.D.2d 864

William MARCH et al., Respondents, v. ST. VOLODYMYR UKRANIAN CATHOLIC CHURCH, Appellant.

Supreme Court, Appellate Division,

Third Department.

Feb. 13, 1986.

MacVean, Lewis, Sherwin & McDermott & Rosenstein, P.C. (Monte J. Rosenstein, of counsel), Middletown, for appellant.

Appelbaum, Eisenberg, Bauman & Appelbaum (Philip E. Conaty, of counsel), Liberty, for respondents.

Before MAHONEY, P.J., and KANE, WEISS, MIKOLL and LEVINE, JJ.

MIKOLL, Justice.

Appeal from an order of the Supreme Court at Special Term (Cholakis, J.), entered May 7, 1985 in Sullivan County, which denied defendant's motion to strike certain items of special damages set forth in plaintiffs' supplemental bill of particulars and granted plaintiffs' cross motion to amend the complaint.

Plaintiff William March (hereinafter plaintiff), a self-employed contractor, was in the course of performing work pursuant to a contract with defendant when he fell from the roof of a structure on defendant's property and sustained serious injuries which prevented his return to work. Plaintiff and his wife commenced this personal injury action. The complaint alleged that as a result of the negligence of defendant, plaintiff "was caused to sustain serious and permanent injuries * * * lose substantial periods of time from his normal vocation and activities".

In a verified bill of particulars, plaintiff asserted that he had been continuously absent from work since the accident on October 3, 1980. At an examination before trial (EBT), plaintiff testified that he had not worked since the accident and indicated his intention to claim lost income as an element of his damages. Counsel for the parties agreed at this EBT that plaintiff's attorney would furnish defendant's counsel with plaintiff's Federal income tax returns for the taxable years 1978, 1979 and 1980. Upon completion of discovery, the case was placed on the trial calendar by service of a note of issue and statement of readiness on or about April 30, 1984.

In December of 1984, plaintiff served a supplemental bill of particulars which detailed lost earnings to date and future lost earnings. Plaintiff also alleged a claim for damages due to the forced sale of rental property. Defendant then moved to strike the supplemental bill as "improper and immaterial". Plaintiff cross-moved to amend the complaint to add the words "and earnings" to his claim for lost time from work. Special Term denied defendant's motion to strike and granted the cross motion to amend the complaint. This appeal followed.

Defendant first contends that it was error to permit amendment of the complaint on the ground that plaintiff failed to submit an affidavit demonstrating the reason for the delay in moving to amend and showing that the amendment was meritorious. Defendant also argues that amendment would be futile since the claim would be barred by the Statute of Limitations. We disagree.

Special Term properly granted plaintiff leave to amend the complaint to assert claims for prior and future lost earnings. CPLR 3025 (b) provides that "party may amend his pleading * * * at any time by leave of court" and that "shall be freely given upon such terms as may be just". The purpose of CPLR 3025(b) is to ensure that the controversy before the court is fully resolved (see, De Forte v. Allstate Ins. Co., 66 A.D.2d 1028, 411 N.Y.S.2d 726). Leave to amend should be freely granted absent prejudice or surprise which directly results from the delay (see, Sheppard v. Smith Well Drilling & Water Systems, 102 A.D.2d 919, 477 N.Y.S.2d 480). CPLR 203 (e) permits the amended pleading to "relate back", for Statute of Limitations purposes, to the time when the original pleading was served, provided the initial pleading gave notice of the transaction or occurrence from which the amended claim arose (see, Clarke v. Government Employees Ins. Co., 83 A.D.2d 570, 571, 441 N.Y.S.2d 141).

An affidavit of reasonable excuse for any delay and of merit is generally required before leave to amend a pleading will be granted (see, Anos Diner v. Pitios Gourmet, 100 A.D.2d 948, 949, 475 N.Y.S.2d 86; Perricone v. City of New York, 96 A.D.2d 531, 533, 464 N.Y.S.2d 839, affd. 62 N.Y.2d 661, 476...