Opinion
March 13, 1962
Allen Beldock for plaintiff.
Jones, Lynch Smith for defendants.
This is a motion to substitute Rose Bloom as executrix of the last will and testament of Meyer Bloom as plaintiff herein and to permit the said executrix upon substitution to serve an amended complaint to include therein an action for wrongful death; and to serve an amended bill of particulars.
The action was commenced on July 31, 1957 to recover damages for personal injuries allegedly sustained in an accident on December 14, 1956. Issue was joined on August 20, 1957 and on February 12, 1958 a bill of particulars, verified by Meyer Bloom was served on defendants. In February, 1958, a note of issue was served for the March 1958 Trial Term of this court. Meyer Bloom died on February 16, 1958. His last will and testament was admitted to probate and Rose Bloom was appointed executrix on December 14, 1958. The sole excuse offered for the failure to have moved previously for the relief sought herein is that it appeared to plaintiff that defendants would possibly settle the action for personal injuries.
The branch of the motion to substitute the executrix as plaintiff in this action is granted. However, the branch of the motion to amend the complaint is denied. In Morris v. Coral Cafe ( 281 App. Div. 844) plaintiff sought to amend his complaint to include additional causes of action for assault. The Appellate Division, reversing the court below, denied the motion saying: "Not only is there no satisfactory excuse for the failure of plaintiff previously to plead the additional assaults and to make his own affidavit in support of the motion for leave, but the delay has been inordinate and recovery for the assaults now sought to be pleaded has been barred since June, 1950, or approximately two and one half years prior to the making of the motion for leave to amend."
Similarly, here there has been an inordinate delay in making the motion, sufficient excuse for the delay is not offered and the action for wrongful death has been barred since February 16, 1960, under section 130 of the Decedent Estate Law.
The branch of the motion to amend the bill of particulars is granted only to the extent that plaintiff may include such other hospital and medical expenses which were incurred after the date the present bill of particulars was served.