Opinion
June 8, 1987
Appeal from the Supreme Court, Westchester County (Martin, J.).
Ordered that the judgment is affirmed, with costs.
The trial court properly exercised its discretion in denying the plaintiff's motion pursuant to CPLR 3025 (b) for leave to amend her complaint, which was made at the commencement of trial. The plaintiff's motion was not supported by an affidavit showing the merit of the proposed amendments, nor by an affidavit showing any reasonable excuse for the extensive delay in seeking leave to amend the complaint (see, Schroeder v Brooklyn Hosp., 119 A.D.2d 564 -565, lv denied 68 N.Y.2d 603; Raies v Apple Annie's Rest., 115 A.D.2d 599; Bertan v Richmond Mem. Hosp. Health Center, 106 A.D.2d 362, 364; Eggeling v County of Nassau, 97 A.D.2d 395). Further, on the eve of the trial, judicial discretion in allowing such an amendment should be discreet, circumspect, prudent and cautious (see, Risucci v Homayoon, 122 A.D.2d 260, 261; Raies v Apple Annie's Rest., supra; Eggeling v County of Nassau, supra; Smith v Sarkisian, 63 A.D.2d 780, 781, affd 47 N.Y.2d 878). It is undisputed that the plaintiff had knowledge of all of the information upon which she based her proposed amendments to her complaint immediately after the defendant Seligman's examination before trial in December 1981, and yet, without any excuse, failed to seek leave to amend her complaint against him until October 28, 1985, the date of commencement of the trial (see, Santorelli v New York City Tr. Auth., 121 A.D.2d 527). Moreover, the trial court properly found that the plaintiff's proposed amendments would have prejudiced the defendant Seligman since they alleged a new theory of liability against him based upon previously unalleged facts (see, DiMauro v Metropolitan Suburban Bus Auth., 105 A.D.2d 236, 240).
While dismissals after the plaintiff's opening statement are not favored, it cannot be said that the trial court abused its discretion pursuant to CPLR 4401 by dismissing the complaint in the instant case in which the plaintiff's counsel effectively conceded that he could not make out a prima facie case against the defendant Seligman within the parameters of the complaint without the proposed amendments which the plaintiff was properly denied leave to make (cf., Seminara v Iadanza, 131 A.D.2d 457; Wilson v Schindler Haughton Elevator Corp., 118 A.D.2d 777; O'Leary v American Airlines, 100 A.D.2d 959, 960; Jurewicz v Lucarelli, 77 A.D.2d 751, 752).
We have reviewed the plaintiff's other contentions and find them to be without merit. Thompson, J.P., Bracken, Lawrence and Spatt, JJ., concur.