Thursday, October 15, 2015

A motion for leave to serve an amended bill of particulars.

Practice point:  The Appellate Division affirmed the denial of the motion, noting that plaintiff failed to offer a reasonable excuse for the delay of two years after filing the note of issue.  The excuse of law office failure was offered only in the reply affirmation, and so it was not properly before the motion court. In any event, the Appellate Division held that it was not a reasonable excuse. In addition, plaintiff did not offer admissible evidence that the new injuries were caused by the accident, or that there is a causal connection between the new injuries and the original injuries alleged

Student note:  While leave to amend is given freely in the absence of prejudice or surprise, when leave is sought on the eve of trial it will be granted sparingly. In addition, where, as here, there is an inordinate delay in making the motion and new injuries are alleged, there must a showing of a reasonable excuse for the delay that the the proposed amendment has merit.

Case:  Canals v. Lai, NY Slip Op 07237 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue:  Standing to commence a foreclosure action.