Glionna v. Kubota, Ltd.

4 Citing cases

  1. Stewart v. Kenneth G. Dunkleman, Jr., Also Known G. Dunkleman, Jr., & Tom Greenauer Dev., Inc.

    128 A.D.3d 1338 (N.Y. App. Div. 2015)   Cited 19 times

    โ€œLeave to serve an amended bill of particulars should not be granted where a [note of issue] has been filed, except upon a showing of special and extraordinary circumstancesโ€ (Sampson v. Barber Salvage Co., 78 A.D.2d 977, 977, 433 N.Y.S.2d 676; cf. Glionna v. Kubota, Ltd., 154 A.D.2d 920, 920, 546 N.Y.S.2d 992). Although โ€œdelay alone is insufficient to deny a motion [for leave] to amend, when unexcused lateness is coupled with prejudice to the opposing party, denial of the motion is justifiedโ€ (Clark v. MGM Textiles Indus., Inc., 18 A.D.3d 1006, 1006, 794 N.Y.S.2d 735; see Raymond v. Ryken, 98 A.D.3d 1265, 1266, 951 N.Y.S.2d 776; Phipps v. Michalak, 57 A.D.3d 1374, 1376, 870 N.Y.S.2d 200).

  2. Craig Ellis v. Air Conditioning

    31 A.D.3d 1220 (N.Y. App. Div. 2006)   Cited 15 times

    Plaintiff established in opposition to the motion "that the nature of [his] injuries has an important bearing on the issue of liability" ( Martinez v Town of Babylon, 191 AD2d 483, 484 [internal quotation marks omitted]; see Iszkiewicz v Town of Lancaster, 16 AD3d 1163) and thus that "bifurcation would not `assist in a clarification or simplification of issues and a fair and more expeditious resolution of the action'" ( Mazur v Mazur, 288 AD2d 945, 945-946, quoting 22 NYCRR 202.42 [a]). We further conclude that the court properly granted the cross motion of plaintiff for leave to amend his bill of particulars to identify the section of the Industrial Code allegedly violated, i.e., 12 NYCRR 23-1.7 (b) (1). Although the note of issue and certificate of readiness had been filed, there was no "unfair surprise or prejudice" to defendant or third-party defendant ( Walker v Metro-North Commuter R.R., 11 AD3d 339, 341; see Glionna v Kubota, Ltd., 154 AD2d 920; see also Harris v Rochester Gas Elec. Corp., 11 AD3d 1032, 1033). In addition, we conclude that the court properly denied that part of defendant's cross motion seeking summary judgment dismissing the Labor Law ยง 241 (6) cause of action.

  3. Allen v. Braxton

    21 A.D.3d 1272 (N.Y. App. Div. 2005)   Cited 3 times

    . The court also did not err in granting the cross motion of plaintiff to compel defendants to accept service of her supplemental bill of particulars alleging her posttraumatic stress disorder ( see Glionna v. Kubota, Ltd., 154 AD2d 920; Hauch v. Padula, 114 AD2d 807). Under the circumstances, we conclude that the supplemental bill of particulars did not allege a "new injury" but, rather, merely supplied a diagnostic label to injuries previously alleged by plaintiff (CPLR 3043 [b]; see generally Tate v. Colabello, 58 NY2d 84, 86-87; Maisonet v. New York City Hous. Auth., 276 AD2d 260; Villalona v. Bronx-Lebanon Hosp. Ctr., 261 AD2d 185).

  4. Blake v. Wieczorek

    305 A.D.2d 989 (N.Y. App. Div. 2003)   Cited 9 times

    Plaintiff did not learn of the injuries to her cervical and lumbar spine until an MRI was performed in June 2001 and an orthopedist to whom she was referred informed her in October 2001 of the need for surgery. In opposition to the motion, defendants failed to demonstrate that they would suffer significant prejudice if the court granted the motion for leave to amend the pleadings with respect to those additional injuries to plaintiff ( see Chiapperini v. Grossinger's Hotel, 176 A.D.2d 1048, 1049; Glionna v. Kubota, Ltd., 154 A.D.2d 920). We agree with defendants, however, that EPTL 11-3.3(b)(2) and CPLR 203(f) are inapplicable under the facts of this case and thus that the court erred in granting that part of plaintiff's motion seeking to amend the complaint to add a cause of action for wrongful death and to include additional injuries contributing to decedent's death.