Opinion
September 17, 1998
Appeal from the Supreme Court, New York County (Leland DeGrasse, J.)
The IAS Court improvidently exercised its discretion in denying plaintiff s motion to amend her bill of particulars.
While we recognize that plaintiff's original attorney should have moved to amend as soon as evidence emerged that a permanent height differential existed on the part of the floor where plaintiff tripped and fell on what she had previously thought was merely a bunched-up carpet, that failure alone should not preclude plaintiff's assertion of her claim in the absence of prejudice to the defendants ( see, Moore v. New York City Tr. Auth., 161 A.D.2d 505).
Here, no showing of prejudice has been made. The complaint itself had indicated that the cause of the accident was "improper design, construction and maintenance of the said floor", clearly placing defendants on notice. Moreover, the record shows quite clearly that the defendants were aware of the defective condition of the floor in the area where plaintiff fell.
Furthermore, plaintiff's new attorney moved promptly after she was retained, and, contrary to the finding of the IAS Court, her motion was not made on the eve of trial, which had been stayed.
Concur — Rosenberger, J. P., Ellerin, Nardelli, Wallach and Saxe, JJ.