You are here: / / MOTION, ON THE EVE OF TRIAL, TO AMEND THE BILL OF PARTICULARS TO CHANGE...
,

MOTION, ON THE EVE OF TRIAL, TO AMEND THE BILL OF PARTICULARS TO CHANGE THE DATE OF THE INJURY SHOULD NOT HAVE BEEN GRANTED.

The Second Department, reversing Supreme Court, determined plaintiff’s motion to amend his bill of particulars to reflect a different date for the injury allegedly caused by defendant’s employees during a carpet delivery should not have been granted. The motion was made on the eve of trial more than four years after the action was commenced and after plaintiff had repeatedly asserted the date during discovery. It turned out that no delivery was made by defendant on the date alleged in the pleadings:

​

“Generally, [i]n the absence of prejudice or surprise to the opposing party, leave to amend a pleading should be freely granted unless the proposed amendment is palpably insufficient or patently devoid of merit'”… . Where, however, 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 discreet, circumspect, prudent, and cautious… . “Moreover, when . . . leave is sought on the eve of trial, judicial discretion should be exercised sparingly” … .

Here, the plaintiff moved for leave to amend his bill of particulars more than four years after the action was commenced, and almost a year after the matter was stricken from the trial calendar. Under the circumstances of this case, the Supreme Court improvidently exercised its discretion in granting that branch of the plaintiff’s motion which was for leave to amend the bill of particulars, as the defendant demonstrated that it would suffer significant prejudice as a result of the unexplained delay … . Tabak v Shaw Indus., Inc., 2017 NY Slip Op 03213, 2nd Dept 4-26-17

 

CIVIL PROCEDURE (MOTION, ON THE EVE OF TRIAL, TO AMEND THE BILL OF PARTICULARS TO CHANGE THE DATE OF THE INJURY SHOULD NOT HAVE BEEN GRANTED)/NEGLIGENCE  (MOTION, ON THE EVE OF TRIAL, TO AMEND THE BILL OF PARTICULARS TO CHANGE THE DATE OF THE INJURY SHOULD NOT HAVE BEEN GRANTED)/BILL OF PARTICULARS, MOTION TO AMEND  (NEGLIGENCE, MOTION, ON THE EVE OF TRIAL, TO AMEND THE BILL OF PARTICULARS TO CHANGE THE DATE OF THE INJURY SHOULD NOT HAVE BEEN GRANTED)

You might also like
PAYOR OF VOLUNTARY SPOUSAL SUPPORT SHOULD HAVE BEEN GIVEN CREDIT FOR THOSE PAYMENTS IN THIS DIVORCE ACTION (SECOND DEPT).
PLAINTIFF ALLEGED DEFENDANT NEGLIGENTLY PERFORMED A ROBOTIC ASSISTED LAPAROSCOPIC ADRENALECTOMY; PLAINTIFF’S EXPERT, A GENERAL SURGEON WHO WAS EXPERIENCED IN LAPAROSCOPIC SURGERY, BUT NOT ROBOTIC SURGERY, SHOULD NOT HAVE BEEN PRECLUDED FROM TESTIFYING; THE LACK OF EXPERIENCE WITH ROBOTIC SURGERY WENT TO THE WEIGHT OF THE TESTIMONY, NOT ITS ADMISSIBILITY (SECOND DEPT).
FAMILY COURT DID NOT ENSURE FATHER’S WAIVER OF HIS RIGHT TO COUNSEL IN THIS CUSTODY MODIFICATION PROCEEDING WAS KNOWING, INTELLIGENT AND VOLUNTARY; NEW HEARING ORDERD (SECOND DEPT).
HERE IT WAS NOT DEMONSTRATED THAT THE JUDGE LAID OUT THE SPECIFIC CONDUCT DEMONSTRATING A NEGLECT TO PROSECUTE AND IT WAS NOT DEMONSTRATED THE PLAINTIFF WAS AFFORDED NOTICE AND AN OPPORTUNITY TO BE HEARD IN OPPOSITION TO DISMISSAL FOR NEGLECT TO PROSECUTE (SECOND DEPT).
THE TRIPPING HAZARD IN A WALKWAY VIOLATED THE INDUSTRIAL CODE; PLAINTIFF ENTITLED TO SUMMARY JUDGMENT ON THE LABOR LAW 241(6) CAUSE OF ACTION (SECOND DEPT).
IN THIS LABOR LAW 240(1) CASE, PLAINTIFF ALLEGED THE LADDER WAS UNSECURED AND SHIFTED; DEFENDANT ALLEGED PLAINTIFF TOLD HIS SUPERVISOR HE LOST HIS BALANCE AND JUMPED FROM THE LADDER, RAISING A QUESTION OF FACT WHETHER PLAINTIFF’S ACTIONS WERE THE SOLE PROXIMATE CAUSE OF THE ACCIDENT (SECOND DEPT).
ALTHOUGH THE NOTICE OF CLAIM IN THIS SLIP AND FALL ACTION AGAINST THE CITY WAS SERVED ONE DAY LATE, AND PLAINTIFF WAS SO NOTIFIED BY THE CITY, THE CITY ALSO INDICATED IN SEVERAL COMMUNICATIONS THAT IT WAS CONSIDERING THE CLAIM; THE CITY WAS THEREFORE EQUITABLY ESTOPPED FROM ASSERTING THE NOTICE OF CLAIM WAS NOT TIMELY SERVED (SECOND DEPT).
DEFENDANT’S STATEMENT TO HIS MOTHER, ON THE PHONE, ABOUT NEEDING THE ASSISTANCE OF AN ATTORNEY SHOULD NOT HAVE BEEN ADMITTED IN EVIDENCE, ERROR WAS HARMLESS HOWEVER (SECOND DEPT).

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

CRITERIA FOR A PRELIMINARY INJUNCTION NOT MET, ALLOWING PAYMENT OF REDUCED RENT... UNDISCLOSED PRINCIPAL CAN SUE ON A LEASE ENTERED INTO BY ITS AGENT.