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Amendment of Bill of Particulars After Four Years of Discovery Should Not Have Been Allowed

The Second Department determined Supreme Court should not have allowed plaintiff to amend his bill of particulars to include aggravation of a preexisting condition because the request came after four years of discovery during which plaintiff had affirmatively stated his injuries did not include aggravation of preexisting condition:

Generally, in the absence of prejudice or surprise to the opposing party, leave to amend a bill of particulars should be freely granted “unless the proposed amendment is palpably insufficient or patently devoid of merit” (…see CPLR 3025[b]…). “However, where the application for leave to amend is made long after the action has been certified for trial, judicial discretion in allowing such amendments should be discrete, circumspect, prudent, and cautious’” … .Under the circumstances of this case, including the fact that, during four years of discovery, the plaintiff affirmatively maintained that his injuries did not include the aggravation of a pre-existing condition, as well as the lateness of his request for leave to amend, the prejudice to the defendants, and the lack of any reasonable excuse for the delay, the Supreme Court improvidently exercised its discretion in granting the plaintiff’s motion for leave to amend his bill of particulars … .  Rodgers v New York City Tr Auth, 2013 NY Slip Op 05623, 2nd Dept 8-14-13

 

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