Opinion
3426, 3427.
Decided April 20, 2004.
Judgment, Supreme Court, Bronx County (Janice L. Bowman, J.), entered on or about December 24, 2002, which dismissed the complaint after a jury verdict in defendant's favor, unanimously affirmed, without costs. Appeal from order, same court and Justice, entered November 26, 2002, denying plaintiff's motion to set aside the verdict, unanimously dismissed, without costs, as subsumed in the appeal from the judgment.
Irom, Wittels, Freund, Berne Serra, P.C., Bronx (Wesley M. Serra of counsel), for appellant.
Michael A. Cardozo, Corporation Counsel, New York (Susan Choi-Hausman of counsel), for respondent.
Before: Buckley, P.J., Nardelli, Andrias, Sullivan, JJ.
Plaintiff's failure to challenge defense counsel's tactics in his post-trial motion to set aside the verdict renders this claim unpreserved for appeal ( Califano v. City of New York, 212 A.D.2d 146). The claim is, in any event, without merit.
Denial of plaintiff's mid-trial motion to amend his four-year-old bill of particulars to assert a new theory of liability was a proper exercise of discretion ( see Moon v. Clear Channel Communications, 307 A.D.2d 628, 630). Defendant would have been prejudiced by deprivation of the opportunity to conduct a deposition of a key witness on this point ( see Prince v. O'Brien, 256 A.D.2d 208, 211-212).
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.