Opinion
November 13, 1961
In an action by plaintiff wife to recover damages for personal injuries sustained as a result of slipping on a mat which was resting on a concrete step at the back entrance of defendants' premises, and by the husband to recover damages for loss of his wife's services and for medical expenses, plaintiffs appeal from a judgment of the Supreme Court, Rockland County, entered October 24, 1960, dismissing the complaint at the close of plaintiffs' case, after a jury trial. Judgment affirmed, without costs. The accident here occurred in March, 1955. The bill of particulars was served in September, 1957. At the trial in September, 1960, plaintiffs' new counsel in his opening statement referred to the cause of the accident as an accumulation of snow and ice on the concrete step underneath the mat. Upon objection by defendants, the court excluded any evidence concerning snow and ice, on the ground that neither the complaint nor the bill of particulars, while alleging numerous specifications of negligence, made any reference to the presence of snow and ice under the mat. Plaintiffs thereupon moved to amend the pleadings or to be permitted to apply at Special Term for such relief. The motion was denied and, at the close of plaintiffs' case, the complaint was dismissed on the ground that no actionable negligence was proved. There is no claim that the evidence was sufficient to raise a question for determination by the jury. In our opinion the denial of the motion five years after the accident was a proper exercise of discretion. At such a late date the granting of the motion would have substantially impaired defendants' rights (Rules Civ. Prac., rule 166; Feizi v. Second Russian Ins. Co., 199 App. Div. 775). The trial court was not required to permit an amendment of the pleadings which would radically change the theory upon which recovery was originally sought ( Berkenstat v. Oliver, 275 App. Div. 679, and cases cited therein). Nolan, P.J., Beldock, Ughetta, Pette and Brennan, JJ., concur.