Monday, May 6, 2013

Amending bills of patriculars, and opposing summary judgment.

Practice point: A party may amend its bill of particulars once as of course before the filing of the note of issue, pursuant to CPLR 3042[b].. Here, when plaintiff served his amended bill of particulars, the court had vacated the original note of issue. A second note of issue had not been filed, and plaintiff had not yet amended his bill of particulars. Therefore, plaintiff properly served his amended bill of particulars without obtaining leave from the court.

Student note:  An affidavit submitted in opposition to a motion for summary judgment does not raise a triable issue of fact where the affidavit can only be considered to have been tailored to avoid the consequences of . . . earlier testimony. A court can infer dishonest intent where there is no supporting evidence for the contradictory affidavit. However, evidence in the record apart from the affidavit itself can raise a triable issue of fact, notwithstanding contradictory deposition testimony.

Case: Fields v. Lambert Houses Redevelopment Corp., NY03027 (1st Dept. 2013).

Here is the decision.

Tomorrow's issue: Constructive trusts.