Thursday, April 14, 2016

Leave to amend denied.

Practice point:  The Appellate Division affirmed, finding that the IAS court did not abuse its discretion in denying plaintiff leave to amend to add claims of injuries to her left foot. While plaintiff was aware of the injury to her left foot for more than three years, she inexplicably delayed in seeking her expert's opinion on the issue of causation, and then further delayed in filing the instant motion. As the evidence ultimately relied upon by plaintiff's expert was developed in 2009 and 2011, well before plaintiff filed her note of issue in 2012, the motion was untimely.

Student note:  The decision to permit an amendment to a pleading or bill of particulars, especially on the eve of trial, is committed to the sound discretion of the IAS court.

Case:  Reuling v. Consolidated Edison Co. of N.Y., Inc., NY Slip Op 02707 (1st Dep't 2016)

Here is the decision.

Tomorrow's issue:  Application of the storm in progress rule.