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Tabak v. Shaw Industries, Inc.

Supreme Court of New York, Second Department

April 26, 2017

Jerzy Tabak, respondent,
v.
Shaw Industries, Inc., appellant. Index No. 100198/10

          Lester Schwab Katz & Dwyer, LLP, New York, NY (Harry Steinberg and Daniel S. Kotler of counsel), for appellant.

          Bader Yakaitis & Nonnenmacher, LLP, New York, NY (Jesse M. Young and Michael Caliguiri of counsel), for respondent.

          JOHN M. LEVENTHAL, J.P., JEFFREY A. COHEN, HECTOR D. LASALLE, BETSY BARROS, JJ.

          DECISION & ORDER

         In an action to recover damages for personal injuries, the defendant appeals, as limited by its brief, from so much of an order of the Supreme Court, Richmond County (McMahon, J.), dated April 21, 2015, as granted that branch of the plaintiff's motion which was for leave to amend the bill of particulars so as to change the date of the subject accident, and, in effect, denied its cross motion for summary judgment dismissing the complaint.

         ORDERED that the order is reversed insofar as appealed from, on the facts and in the exercise of discretion, with costs, that branch of the plaintiff's motion which was for leave to amend the bill of particulars is denied, and the defendant's cross motion for summary judgment dismissing the complaint is granted.

         In the complaint filed in January 2010, the plaintiff alleged that he was injured on August 16, 2007, as a result of the defendant's employees' negligence in their delivery of carpet to the building where the plaintiff worked as a handyman. In a bill of particulars dated April 28, 2010, the plaintiff reiterated that the accident occurred on August 16, 2007. At his deposition, the plaintiff also testified that the accident occurred on August 16, 2007.

         The matter was stricken from the trial calendar on October 28, 2013, just before jury selection. On October 6, 2014, the plaintiff moved to restore the matter to the trial calendar, and for leave to amend the bill of particulars so as to change the date of the accident from August 16, 2007, to July 16, 2007. The defendant opposed the plaintiff's motion, and cross-moved for summary judgment dismissing the complaint, asserting that the plaintiff had conceded that the defendant did not make a delivery to the plaintiff's location on August 16, 2007.

         The Supreme Court, inter alia, granted that branch of the plaintiff's motion which was for leave to amend, and, in effect, denied the defendant's cross motion for summary judgment dismissing the complaint. The defendant appeals.

         "Generally, [i]n the absence of prejudice or surprise to the opposing party, leave to amend a pleading should be freely granted unless the proposed amendment is palpably insufficient or patently devoid of merit'" (Morris v Queens Long Is. Med. Group, P.C., 49 A.D.3d 827, 828, quoting G.K. Alan Assoc., Inc. v Lazzari, 44 A.D.3d 95, 99, affd 10 N.Y.3d 941; see CPLR 3025[b]; Lucido v Mancuso, 49 A.D.3d 220; Trataros Constr., Inc. v New York City School Constr. Auth., 46 A.D.3d 874, 874). Where, however, the application for leave to amend is made long after the action has been certified for trial, judicial discretion in allowing such amendments should be discreet, circumspect, prudent, and cautious (see Civil Serv. Empls. Assn. v County of Nassau, 144 A.D.3d 1077, 1078; Yong Soon Oh v Hua Jim, 124 A.D.3d 639, 640-641; Morris v Queens Long Is. Med. Group, P.C., 49 A.D.3d at 828). "Moreover, when... leave is sought on the eve of trial, judicial discretion should be exercised sparingly" (Morris v Queens Long Is. Med. Group, P.C., 49 A.D.3d at 828; see Yong Soon Oh v Hua Jim, 124 A.D.3d at 641; Comsewogue Union Free School Dist. v Allied-Trent Roofing Sys., Inc., 15 A.D.3d 523, 525; Rosse-Glickman v Beth Israel Med. Ctr.-Kings Highway Div., 309 A.D.2d 846).

         Here, the plaintiff moved for leave to amend his bill of particulars more than four years after the action was commenced, and almost a year after the matter was stricken from the trial calendar. Under the circumstances of this case, the Supreme Court improvidently exercised its discretion in granting that branch of the plaintiff's motion which was for leave to amend the bill of particulars, as the defendant demonstrated that it would suffer significant prejudice as a result of the unexplained delay (see Civil Serv. Empls. Assn. v County of Nassau, 144 A.D.3d at 1079; Wells Fargo Bank, N.A. v Morgan, 139 A.D.3d 1046, 1048; Yong Soon Oh v Hua Jim, 124 A.D.3d at 641).

         Consequently, the defendant's cross motion for summary judgment dismissing the complaint must be granted, since the plaintiff admits that the defendant did not make a delivery to the plaintiff's location on ...


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