Wednesday, April 6, 2016

A motion to dismiss, and amending a bill of particulars.

Practice point:  The Appellate Division affirmed the motion to dismiss, as photographic evidence proves, and plaintiff acknowledges, that the compressor that was allegedly involved in plaintiff's accident was not at the job site on the day alleged. Plaintiff was not entitled to amend the bill of particulars on the eve of trial, after approximately seven years of litigation, since the photographs serving as the basis for the amendment were not newly available to plaintiff. Moreover, the proposed amendment, including changing the date of the accident, would have resulted in prejudice to defendants  

Student note:  Leave to amend pleadings, including a bill of particulars, will be freely given, absent prejudice or surprise. However, when the amendment is sought at or on the eve of trial, judicial discretion in allowing the amendment should be discreet, circumspect, prudent, and cautious.

Case:  Garguilo v. Port Auth. of N.Y. & N.J., NY Slip Op 02534 (1st Dep't 2016) 

Here is the decision.

Tomorrow's issue:  Summary judgment in a slip-and-fall action.