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IN THIS CHILD VICTIMS ACT CASE AGAINST A TEACHER, PLAINTIFF’S MOTION TO AMEND THE BILL OF PARTICULARS TO ADD DEPOSITION TESTIMONY CONCERNING STATEMENTS MADE BY WITNESSES TO PLAINTIFF’S ATTORNEYS SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court in this Child Victims Act suit, determined plaintiff should have been allowed to amend the bill of particulars to add deposition testimony which included witness statements made to plaintiff’s attorneys concerning the defendant teacher:

“Pursuant to CPLR 3025(b), leave to amend or supplement a pleading is to be ‘freely given'” … . “‘In the absence of prejudice or surprise resulting directly from the delay in seeking leave, such applications are to be freely granted unless the proposed amendment is palpably insufficient or patently devoid of merit'” … . “The burden of proof in establishing prejudice or surprise, or that the proposed amendment lacks merit, falls to the party opposing the motion for leave to amend” … . “[T]he decision of whether to grant or deny leave to amend is subject to the discretion of the trial court” … .

The Supreme Court improvidently exercised its discretion in denying that branch of the plaintiff’s motion which was for leave to amend the bill of particulars to include the proposed witness’s statements to [plaintiff’s attorneys]. The proposed amendment was not palpably insufficient or patently devoid of merit … . In this case, having failed to oppose the motion, the District defendants failed to satisfy their burden of demonstrating any prejudice or surprise … . Fitzpatrick v Pine Bush Cent. Sch. Dist., 2025 NY Slip Op 03794, Second Dept 6-25-25

Practice Point: Amendments to pleadings should be freely allowed. Here deposition testimony about vague and contradictory statements made to plaintiff’s counsel by witnesses concerning defendant teacher’s alleged interaction with students can properly be added to the bill of particulars, criteria explained.

 

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