Scarangello v. State

• Decision Date: 10 June 1985
• Citation: 490 N.Y.S.2d 781,111 A.D.2d 798
• Parties: Paula SCARANGELLO, etc., Appellant, v. The STATE of New York, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 781

490 N.Y.S.2d 781

111 A.D.2d 798

Paula SCARANGELLO, etc., Appellant, v. The STATE of New York, Respondent.

Supreme Court, Appellate Division Second Department.

June 10, 1985.

Glabman, Rubenstein, Reingold & Rothbart, Brooklyn (Abraham Reingold, Brooklyn, of counsel), for appellant.

Robert Abrams, Atty. Gen., Albany (Peter J. Dooley and Vernon Stuart, Albany, of counsel), for respondent.

Before MOLLEN, P.J., and RUBIN, LAWRENCE and KUNZEMAN, JJ.

MEMORANDUM BY THE COURT.

In a wrongful death claim, claimant appeals from an order of the Court of Claims dated January 3, 1984, which denied her motion for an order authorizing the service and filing of an amended bill of particulars.

Order reversed, without costs or disbursements, and appellant's motion granted.

Motions to amend or supplement a bill of particulars are governed by the same standards as those applying to motions to amend pleadings (Kerlin v. Green, 36 A.D.2d 892, 320 N.Y.S.2d 200; 3 Weinstein-Korn-Miller, NY Civ Prac, par. 3042.14a). A party may amend his pleadings at any time by permission of the court and leave is to be freely given (CPLR 3025[b]; 22 NYCRR 1200.12[b] ). While a court has broad discretion in deciding whether leave to amend should be granted, it is considered an improvident exercise of discretion to deny leave to amend in the absence of an inordinate delay and a showing of prejudice to the defendant (see, Pignataro v. Balsamo, 108 A.D.2d 1086, 485 N.Y.S.2d 656; Plattsburgh Distributing Co., v. Hudson Valley Wine Co., 108 A.D.2d 1043, 485 N.Y.S.2d 616; Cardy v. Frey, 86 A.D.2d 968, 448 N.Y.S.2d 291; see also, Fahey v. County of Ontario, 44 N.Y.2d 934, 408 N.Y.S.2d 314, 380 N.E.2d 146).

In the instant case, while there was substantial delay by the claimant in seeking the amendment of her bill of particulars, the State will not be prejudiced by such relief since it was apprised at the outset of the facts and the nature of the claim and claimant's proposed amendment involves the same transaction and set of facts (see, Plattsburgh Distributing Co., v. Hudson Valley Wine Co., supra, at 617). In addition, it is noted that contrary to the State's position, the claimant is not seeking to add causes of action by amending her bill of particulars but rather is seeking to amplify and clarify allegations contained in her claim for damages and original bill of particulars. In view of the facts of the instant case, the court improvidently exercised its discretion in denying...