Opinion
May 7, 1999
Appeal from Order of Supreme Court, Erie County, Sedita, Jr., J. — Summary Judgment.
Present — Green, J. P., Wisner, Pigott, Jr., Hurlbutt and Scudder, JJ.
Order unanimously affirmed with costs. Memorandum: Plaintiffs commenced this action to recover damages for injuries sustained by Ricky L. Miles (plaintiff) when he fell from the ladder of a boxcar. At the time of the accident, plaintiff was employed by defendant as a, conductor at its Frontier Yard. Supreme Court properly denied that part of defendant's motion seeking summary judgment dismissing the cause of action under the Federal Employers' Liability Act ([FELA] 45 U.S.C. § 51 et seq.). Defendant failed to meet its initial burden of establishing as a matter of law "that negligence by the employer could have played no part in [plaintiff's] injury" (Pidgeon v. Metro-North Commuter R. R., 248 A.D.2d 318, 319, citing Inman v. Baltimore Ohio R. R. Co., 361 U.S. 138, 140-141; see, Rogers v. Missouri Pac. R. R. Co., 352 U.S. 500, 506-507, reh denied 353 U.S. 943). The court also properly granted plaintiffs' motion for leave to amend the bill of particulars to allege defendant's violation of the Boiler Inspection Act ( 49 U.S.C. § 20701). The proposed amendment is based upon the same facts alleged in the original bill of particulars, and there is no indication that defendant has been prejudiced by plaintiffs' delay in seeking leave to amend (see, Ganci v. Port Auth. Trans-Hudson Corp., 258 A.D.2d 386; Cardy v. Frey, 86 A.D.2d 968, 969-970).