Dubose v. N.Y. City Health Hospitals Corp.

Full title: ALLEN DUBOSE, Appellant, v. NEW YORK CITY HEALTH AND HOSPITALS CORP. et…

Court: Appellate Division of the Supreme Court of New York, First Department

Date published: Jul 2, 1996

229 A.D.2d 312 (N.Y. App. Div. 1996)

645 N.Y.S.2d 18

Opinion

July 2, 1996

Appeal from the Supreme Court, Bronx County (Douglas McKeon, J).

Under CPLR 3042 (b) (CPLR 3042 [former (g)]), a party is entitled to amend the bill of particulars once as of right, regardless of the timing, so long as the note of issue has not been filed. Here, since plaintiff sought to amend his bill of particulars before the note of issue was filed, his amendment should have been allowed ( Scalamandre v. Caruso, 151 A.D.2d 467). In any case, in the absence of special circumstances, which were not shown here, defendants were required to move to strike the amended bill within 10 days of its receipt (CPLR 3042 [former (d)]). Their failure to so move for over nine months was therefore fatal to their claim.

Concur — Milonas, J.P., Ellerin, Rubin, Kupferman and Ross, JJ.