Opinion
2014-09346, Index No. 14971/11.
10-07-2015
Ana CANALS, appellant, v. Andrew LAI, et al., respondents.
Mark Rolnik, New York, N.Y. (Barry Woolfson of counsel), for appellant. Ahmuty, Demers & McManus, Albertson, N.Y. (Terrence J. Kemp, Nicholas M. Cardascia, and Glenn A. Kaminska of counsel), for respondents Maglorie Cevieux and Grandpa's Bus Co., Inc.
Mark Rolnik, New York, N.Y. (Barry Woolfson of counsel), for appellant.
Ahmuty, Demers & McManus, Albertson, N.Y. (Terrence J. Kemp, Nicholas M. Cardascia, and Glenn A. Kaminska of counsel), for respondents Maglorie Cevieux and Grandpa's Bus Co., Inc.
Opinion In an action to recover damages for personal injuries, the plaintiff appeals, as limited by her brief, from so much of an order of the Supreme Court, Queens County (Greco, Jr., J.), entered August 4, 2014, as denied that branch of her motion which was for leave to serve an amended bill of particulars.
ORDERED that the order is affirmed insofar as appealed from, with costs.
While leave to amend a bill of particulars is ordinarily to be freely given in the absence of prejudice or surprise (see CPLR 3025[b] ), when leave is sought on the eve of trial, judicial discretion should be exercised sparingly (see Green v. New York City Hous. Auth., 81 A.D.3d 890, 891, 917 N.Y.S.2d 313 ; Torres v. Educational Alliance, 300 A.D.2d 469, 470, 752 N.Y.S.2d 80 ). Furthermore, where there has been an inordinate delay in seeking leave to amend to include a new injury, a plaintiff must establish a reasonable excuse for the delay and show that the proposed amendment has merit (see Green v. New York City Hous. Auth., 81 A.D.3d at 891, 917 N.Y.S.2d 313 ; Mercado v. Moss, 35 A.D.3d 553, 554, 824 N.Y.S.2d 745 ; Itzkowitz v. King Cullen Grocery Co., Inc., 22 A.D.3d 636, 637, 804 N.Y.S.2d 350 ).
Here, the plaintiff failed to proffer a reasonable excuse for the delay in moving for leave to serve an amended bill of particulars until two years after the note of issue had been filed. The excuse of law office failure proffered by the plaintiff's attorney for the first time in a reply affirmation was not properly before the Supreme Court and, in any event, did not rise to the level of a reasonable excuse (see CPLR 2214 ; Fenner v. County of Nassau, 80 A.D.3d 555, 556, 914 N.Y.S.2d 653 ; Bowman v. Kusnick, 35 A.D.3d 643, 644, 827 N.Y.S.2d 258 ; Parkin v. Ederer, 27 A.D.3d 633, 810 N.Y.S.2d 901 ). Furthermore, the plaintiff failed to establish, through admissible medical evidence, that the new injuries were caused by the subject accident (see CPLR 2215 ; Grasso v. Angerami, 79 N.Y.2d 813, 814–815, 580 N.Y.S.2d 178, 588 N.E.2d 76 ; Itzkowitz v. King Kullen Grocery Co., Inc., 22 A.D.3d at 637, 804 N.Y.S.2d 350 ; Fuentes v. City of New York, 3 A.D.3d 549, 550, 771 N.Y.S.2d 178 ) or that there was a causal connection between the new injuries and the original injuries alleged (see Daly–Caffrey v. Licausi, 70 A.D.3d 884, 885, 895 N.Y.S.2d 197 ; Kyong Hi Wohn v. County of Suffolk, 237 A.D.2d 412, 413, 654 N.Y.S.2d 826 ; Simino v. St. Mary's Hosp. of Brooklyn, Catholic Med. Ctr. of Brooklyn & Queens, 107 A.D.2d 800, 801, 484 N.Y.S.2d 634 ).
The plaintiff's remaining contention is not properly before this Court.
Accordingly, the Supreme Court properly denied that branch of the plaintiff's motion which was for leave to serve an amended bill of particulars.
RIVERA, J.P., DICKERSON, MALTESE and LaSALLE, JJ., concur.