Opinion
January 30, 1989
Appeal from the Supreme Court, Queens County (Leviss, J.).
Ordered that the order is affirmed, with costs.
While the general rule is that leave to amend "shall be freely given upon such terms as may be just" (CPLR 3025 [b]), judicial discretion in allowing such an amendment on the eve of trial should be "'discreet, circumspect, prudent and cautious'" (Smith v Sarkisian, 63 A.D.2d 780, 781 [affd 47 N.Y.2d 878 for reasons stated in mem at App. Div.], quoting from Symphonic Elec. Corp. v Audio Devices, 24 A.D.2d 746; see also, Raies v Apple Annie's Rest., 115 A.D.2d 599). Initially, it should be noted that the plaintiffs made no effort to explain the delay in seeking to amend their bill of particulars on the eve of trial some 6 1/2 years after the date of the accident, 3 1/2 years after the original bill of particulars was served and 2 1/2 years after the completion of examinations before trial (see, Perricone v City of New York, 96 A.D.2d 531). Moreover, the proposed amendment sought to add a new theory of recovery which was not readily discernible from the allegations in the original complaint and bill of particulars (see, Gutierrez v Enright, 91 A.D.2d 972).
Accordingly, it cannot be said that the Supreme Court improvidently exercised its discretion in denying the plaintiffs' motion (see, Linares v Spencer-Cameron Leasing Corp., 121 A.D.2d 606). The plaintiffs, who admittedly possessed the facts underlying the proposed amendment since 1984, could not merely sit back and await the eve of trial before moving to amend the bill of particulars in such a substantial manner (see, Gross Co. v Damor Realty Corp., 60 A.D.2d 541). Lawrence, J.P., Eiber, Harwood and Balletta, JJ., concur.