Tabak v. Shaw Indus., Inc.

• Decision Date: 26 April 2017
• Citation: 53 N.Y.S.3d 154,149 A.D.3d 1132
• Parties: Jerzy TABAK, respondent, v. SHAW INDUSTRIES, INC., appellant.
• Court: New York Supreme Court — Appellate Division

149 A.D.3d 1132
53 N.Y.S.3d 154

Jerzy TABAK, respondent,
v.
SHAW INDUSTRIES, INC., appellant.

Supreme Court, Appellate Division, Second Department, New York.

April 26, 2017.

53 N.Y.S.3d 154

Lester Schwab Katz & Dwyer, LLP, New York, NY (Harry Steinberg and Daniel S. Kotler of counsel), for appellant.

Bader Yakaitis & Nonnenmacher, LLP, New York, NY (Jesse M. Young and Michael Caliguiri of counsel), for respondent.

JOHN M. LEVENTHAL, J.P., JEFFREY A. COHEN, HECTOR D. LaSALLE, and BETSY BARROS, JJ.

In an action to recover damages for personal injuries, the defendant appeals, as limited by its brief, from so much of an order of the Supreme Court, Richmond County (McMahon, J.), dated April 21, 2015, as granted that branch of the plaintiff's motion which was for leave to amend the bill of particulars so as to change the date of the subject accident, and, in effect, denied its cross motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed insofar as appealed from, on the facts and in the exercise of discretion, with costs, that branch of the plaintiff's motion which was for leave to amend the bill of particulars is denied, and the defendant's cross motion for summary judgment dismissing the complaint is granted.

53 N.Y.S.3d 155

In the complaint filed in January 2010, the plaintiff alleged that he was injured on August 16, 2007, as a result of the defendant's employees' negligence in their delivery of carpet to the building where the plaintiff worked as a handyman. In a bill of particulars dated April 28, 2010, the plaintiff reiterated that the accident occurred on August 16, 2007. At his deposition, the plaintiff also testified that the accident occurred on August 16, 2007.

The matter was stricken from the trial calendar on October 28, 2013, just before jury selection. On October 6, 2014, the plaintiff moved to restore the matter to the trial calendar, and for leave to amend the bill of particulars so as to change the date of the accident from...