Summary
In Lukaris v. Harrison Vending Systems, Inc., 28 A.D.2d 1019, 283 N.Y.S.2d 674, 676 (3d Dept. 1967), the Court stated: "At what point in the trial an election must be made will have to be determined by the Trial Judge in the light of the record as it develops."
Summary of this case from Prudential Oil Corp. v. Phillips Petroleum Co.Opinion
October 24, 1967
Appeal from an order of Supreme Court, Warren County, entered on October 24, 1966, granting plaintiffs' motion to serve an amended and supplemental bill of particulars. In this action, commenced on March 8, 1963, the plaintiffs seek to recover damages as a result of a fire on plaintiff's property, allegedly arising from a defective vending machine, or as a result of its installation by the defendants. It is alleged in paragraph twelfth of the complaint as follows: "That on or about the 16th day of May, 1961 the defendants were so reckless, careless and negligent in their activities directly and indirectly identified with the installation of the said vending machine and/or the defendants were careless and negligent in that they installed a defective vending machine that within minutes of the time of installation of such vending machine the administration building of the plantiff, Paul Lukaris, was caused to be set afire." The defendants served a demand for a bill of particulars dated October 4, 1963 seeking a statement of the specific acts of the defendants' negligence which demand was answered in the bill of particulars as follows: "The plaintiffs reserve the right to rely upon the doctrine of res ipsa loquitur respecting any negligent acts or omissions on the part of the defendants herein and the presumptions implicit in such doctrine." Thereafter an examination before trial of the plaintiff Lukaris was held on August 10, 1965 at which time he testified that at the time of the fire he observed that the machine had been hooked up to the wrong outlet, thus presumably causing the fire. The action was set for trial on October 10, 1966 at which time the plaintiffs moved for permission to serve an amended and supplemental bill of particulars setting forth allegations of specific negligence as well as the doctrine of res ipsa loquitur which motion was granted by the Trial Judge. Defendants contend that the plaintiffs should be bound by their election in the original bill of particulars, and that they would be prejudiced by the change in the theory of plaintiffs' action. The trial court held, in granting plaintiffs' motion, that from the proceedings and pleadings the plaintiffs did allege a cause of action in negligence as well as res ipsa loquitur, and that there was no surprise as far as the allegations of negligence were concerned. The effect of the allegation in the bill of particulars was not that of an election. At what point in the trial an election must be made will have to be determined by the Trial Judge in the light of the record as it develops. CPLR 3025 (subd. [b]) permits a party to amend his pleadings at any time by leave of the court which leave "shall be freely given upon such terms as may be just". Here the defendants were aware of the evidence that the plaintiffs proposed to rely on and, under the circumstances, the defendants would not have been prejudiced by permitting the service of the amended and supplemental bill of particulars, and the granting of the motion was a proper exercise of the court's discretion. ( Symphonic Electronic Corp. v. Audio Devices, 24 A.D.2d 746; Ciunci v. Wella Corp., 23 A.D.2d 754.) Order affirmed, with costs. Gibson, P.J., Herlihy, Reynolds, Staley, Jr., and Gabrielli, JJ., concur in memorandum by Staley, Jr., J.