Videobox Networks, L.P. v. Durst

• Decision Date: 25 March 1999
• Citation: 686 N.Y.S.2d 762
• Parties: 1999 N.Y. Slip Op. 2621 VIDEOBOX NETWORKS, L.P., Plaintiff-Appellant, v. Shirley DURST, et al., Defendants-Respondents.
• Court: New York Supreme Court — Appellate Division

Page 762

686 N.Y.S.2d 762

1999 N.Y. Slip Op. 2621

VIDEOBOX NETWORKS, L.P., Plaintiff-Appellant, v. Shirley DURST, et al., Defendants-Respondents. [And Other Actions]

Supreme Court, Appellate Division, First Department.

March 25, 1999.

J. Jeffrey Weisenfeld, for Plaintiff-Appellant.

Sue C. Jacobs, Thomas J. Graham, Paul Kovner, for Defendants-Respondents.

ROSENBERGER, J.P., TOM, WALLACH and MAZZARELLI, JJ.

MEMORANDUM DECISION.

Order, Supreme Court, New York County (Alfred Toker, J.H.O.), entered on or about February 10, 1998, which, in an action to recover for damages to plaintiff's building allegedly caused by construction work to defendants' adjacent building, denied plaintiff's motion to adjourn the trial, "supplement" its amended bill of particulars and file additional expert witness disclosure, unanimously affirmed, with costs.

Plaintiff's eve-of-trial motion to change its theory of damages from lost rental income and cost of repair to reduced rental value was properly denied on the ground that the delay in asserting this new theory was both prejudicial and inexcusable (see, Boland v. Koppelman, 251 A.D.2d 176, 674 N.Y.S.2d 349; Wilson v. Haagen-Dazs Co., 215 A.D.2d 338, 627 N.Y.S.2d 41, lv. dismissed 86 N.Y.2d 838, 634 N.Y.S.2d 446, 658 N.E.2d 224).