Blumenthal v. 1979 Marcus Ave. Assocs.

1 Citing case

  1. Benegas v. Ardsley Country Club, Inc.

    2024 N.Y. Slip Op. 4368 (N.Y. App. Div. 2024)

    omitted]; see Lorincz v Castellano, 208 A.D.3d 573, 574-575). Although a motion for leave to amend a bill of particulars may be granted even after the note of issue has been filed (see Achee v Merrick Vil., Inc., 208 A.D.3d at 543), the length of time that elapsed after the party seeking the amendment was aware of the facts upon which the motion was predicated, whether a reasonable excuse for the delay was offered, and whether prejudice resulted therefrom are factors to consider in whether to grant such a motion (see id.; King v Marwest, LLC, 192 A.D.3d 874, 876). Here, the plaintiff offered no excuse for his delay in seeking leave to amend the bill of particulars to allege a violation of 12 NYCRR 23-6.1(e) as a predicate for the Labor Law ยง 241(6) cause of action (see Lorincz v Castellano, 208 A.D.3d at 575; Pitre v City of New York, 92 A.D.3d 661, 662). Moreover, contrary to the plaintiff's contention, the proposed amendment presented a new theory of liability (see Blumenthal v 1979 Marcus Ave. Assoc., LLC, 203 A.D.3d 1122, 1123; King v Marwest, LLC, 192 A.D.3d at 877).