New York State Court of Claims

New York State Court of Claims

BILELLO v. THE STATE OF NEW YORK , #2002-028-032, Claim No. 94921, Motion No. M-64841


Claimants' motion pursuant to CPLR 3025 to amend the Claim and Bill of Particulars to increase the damages sought is granted. Relief requested pursuant to CPLR 3124 and 3126 is denied as moot.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant's attorney:
TORINO & BERNSTEIN, PCBY: Vincent J. Battista, Esq.
Defendant's attorney:
BY: Denis J. McElligott, Esq. Assistant Attorney General
Third-party defendant's attorney:

Signature date:
June 3, 2002

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers were read on Claimants' motion for leave to amend the Bill of Particulars and Claim:

1) Notice of Motion and Affirmation of Vincent J. Battista, Esq. (Battista Affirmation) with annexed Exhibits A-I; and Affidavit in Support of Bruce Mina, filed

March 11, 2002,

2) Affirmation in Opposition of Denis J. McElligott (McElligott Affirmation) filed

April 3, 2002 with annexed Exhibits A and B;

Filed Papers: Claim, Verified Answer

Claimants' present counsel has stepped into the void created when this Court, by decision and order, filed February 22, 2001, granted an application by Claimants' prior counsel to be relieved. On November 30, 2001, the Court conducted a pre-trial conference and issued a modified scheduling order (Battista Affirmation, Exhibit E), which, inter alia, required Claimants to provide a CPLR 3101(d)[expert witness] response by December 31, 2001. That response was served upon the State on January 21, 2002 (Battista Affirmation, ¶14) and forms the basis for Claimants' instant application for leave to amend the Bill of Particulars and Claim to reflect the increased damages as calculated by the expert. ( Id.).[1] Defendant opposes the motion arguing that the proposed amendment is without merit because Claimant executed a release (see, McElligott Affirmation, ¶ 10 and Exhibit B). Defendant, in the alternative, seeks additional discovery if leave to amend is granted.

Motions for leave to amend or supplement bills of particulars are governed by the same standards as those applying to motions to amend pleadings under CPLR § 3025(b) (Kerlin v. Green, 36 AD2d 892). CPLR § 3025 [b] provides that a party may amend his pleadings at any time by leave of the court and that leave shall be freely given on such terms as may be just. While a court has broad discretion in deciding whether leave to amend should be granted, it is considered an improvident exercise of discretion to deny leave to amend in the absence of an inordinate delay and a showing of prejudice to the defendant (see, Edenwald Contracting Co., Inc. v City of New York, 60 NY2d 957, 959; Scarangello v State of New York, 111 AD2d 798).

The Court is of the view that there has been neither an inordinate delay, nor will there be prejudice to the Defendant. Claimants' proposed amendment involves the same transaction and set of facts; the gist of this claim remains the same (see, Plattsburgh Distrib. Co. v. Hudson Valley Wine Co., 108 AD2d 1043, 1044). Moreover, the Court does not view the increase in the damages sought as adding causes of action to the Claim (see, Orros v Yick Ming Yip Realty, Inc., 258 AD2d 387, 388).

The Court must make one further inquiry before granting leave to amend and that is to determine whether the amendment "clearly lacks merit"(Perrini v City of New York, 262 AD2d 541, 542; Nasuf Construction Corp. v State of New York, 185 AD2d 305) as Defendant argues. The release documents submitted by Defendant, while raising a question of merit, do not establish a lack of merit to the proposed amendment (see, Welbilt Corp. v State of New York, 80 Misc 2d 439). On the record presently before the Court, resolution of the effect of the release documents is better left to the trial of this claim.[2] Accordingly, Claimants are granted leave to amend the Claim and Bill of Particulars.

For the foregoing reasons, Claimants' motion is GRANTED. Claimants shall file and serve the amended pleadings in the form annexed to the motion within seven (7) days of the filed date of this decision and order.

The Court shall initiate a telephone conference on June 5, 2002 at 11:00 a.m. to determine what additional discovery, if any, Defendant shall require and to issue a scheduling order for same.

June 3, 2002
Albany, New York

Judge of the Court of Claims

[1] Claimants' motion also requested relief pursuant to CPLR §§ 3124 and 3126, which was rendered moot by the conference conducted by the Court on April 10, 2002 (see, Uniform Rules for the Court of Claims. §206.8[b]) and the subsequent silence of the parties as to any further dispute over the at-issue disclosure.
[2] The Court, at the April 10, 2002 conference, granted Defendant the opportunity to file a summary judgment motion in light of the discovery of the release documents. No such motion was filed.