Opinion
April 1, 1971
Appeal from the Onondaga Special Term.
Present — Marsh, J.P., Gabrielli, Moule, Cardamone and Henry, JJ.
Order unanimously reversed, without costs to either party, and motion granted upon condition that plaintiff submit to a physical examination and an examination before trial if requested by defendant to do so. Memorandum: By notice of motion returnable February 10, 1970, plaintiff moved for leave to serve a proposed amended complaint increasing the ad damnum clause and an amended bill of particulars. CPLR 3025 (subd. [b]) provides that as to the amendment of pleadings by leave of the court, "Leave shall be freely given upon such terms as may be just", and while the section does not expressly apply to bills of particulars, 3 Weinstein-Korn-Miller, New York Civil Practice (par. 3041.21) points out that the standard used in deciding motions for leave to amend bills of particulars appears to be akin to that under CPLR 3025 (subd. [b]) for amended pleadings. Thus leave to serve an amended bill of particulars in the absence of a showing of prejudice should be freely granted ( Mermelstein v. Lee, 23 A.D.2d 689). As this court recently held in Smith v. University of Rochester Medical Center ( 32 A.D.2d 736) it would be an improvident exercise of discretion to deny leave to amend the ad damnum clause in the absence of laches and prejudice to defendant. The action was commenced by service of a summons and complaint October 14, 1967. Issue was joined October 24, 1967 and plaintiff served his original bill of particulars January 25, 1968. It appears that plaintiff was first referred to a Dr. Beall by his original attending physician July 22, 1968. Plaintiff's attorney received Dr. Beall's report November 8, 1968 and 10 weeks later following negotiations with defendant's representatives submitted all of his doctors' reports and bills, including Dr. Beall's, to defendant's attorney, with the statement that he intended to amend his bill of particulars prior to trial to reflect changes in plaintiff's condition. Having been put on notice of plaintiff's supplemental claims so soon after diagnosis and treatment by plaintiff's physician, defendant should not now be heard to assert prejudice.