2) Affirmation in Opposition of Denis J. McElligott (McElligott
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
, Exhibit E), which, inter alia,
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
, ¶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. (
Defendant opposes the motion
arguing that the proposed amendment is without merit because Claimant executed a
, McElligott Affirmation
, ¶ 10 and Exhibit B).
Defendant, in the alternative, seeks additional discovery if leave to amend is
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
, 262 AD2d 541, 542; Nasuf Construction Corp. v State of New
, 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
, 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
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.