New York State Court of Claims

New York State Court of Claims

HOWLETT v. THE NEW YORK STATE THRUWAY AUTHORITY, #2005-010-024, Claim No. 100807, Motion No. M-69952


Claimants' motion for leave to serve an Amended Verified Bill of Particulars as the Court found defendant would be unfairly surprised and unduly prejudiced by such amendment less than four weeks before trial.

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):

Terry Jane Ruderman
Claimant's attorney:
SACKS AND SACKS, LLPBy: Andrew R. Diamond, Esq.
Defendant's attorney:
Attorney General for the State of New York
By: FABIANI & COHEN, LLPJohn G. Caulfield, Esq.
Third-party defendant's attorney:

Signature date:
April 11, 2005
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers numbered 1-2 were read and considered by the Court on claimants' motion for leave to serve an Amended Verified Bill of Particulars:
Notice of Motion, Attorney's Supporting Affirmation and Exhibits........................1

Attorney's Affirmation in Opposition......................................................................2

This claim arises out of an accident that occurred on July 22, 1999 when Gerald Howlett (hereinafter claimant),[1] an iron worker, was injured while performing work on the Tappan Zee Bridge. Claimant was allegedly injured when he was struck by a concrete slab that was being hoisted by a crane operator. The claim alleges negligence and Labor Law violations of §§ 200, 240, 241(6).

Less than four weeks before trial, as a basis for liability under Labor Law § 241(6), claimants seek to serve an Amended Verified Bill of Particulars asserting 29 additional violations of the Industrial Code subsections under §§ 23-8.1 and 23-8.2. The application does not set forth any reasonable excuse for the failure to set forth these subsections in the original bill of particulars, the three supplemental bills or the amended bill of particulars served on November 22, 2004. The purported excuse is that during a court conference on March 16, 2005, wherein claimants' attorney was directed to limit his alleged amended bill of particulars to those subsections applicable to the case at bar, claimants' attorney first realized that "due to an oversight" 29 subsections were "inadvertently omitted" from the previously served bill of particulars (Attorney's Supporting Affirmation, ¶ 5).

Absent prejudice or surprise, leave to amend a bill of particulars is generally to be freely granted ( see CPLR 3025[b[; Spada v Sepulveda, 306 AD2d 270, 270-71). However, where the application is sought on the eve of trial, leave should be granted "sparingly" (Spada v Sepulveda, supra at 271) and "judicial discretion should be exercised in a discreet, circumspect, prudent and

cautious manner' " (Fuentes v City of New York, 3 AD3d 549, citing Smith v Plaza Transp. Ambulance Serv., 243 AD2d 555). Additionally, where there has been an inordinate delay in seeking the amendment, the movant must show a reasonable excuse for the delay and submit an affidavit to establish the merit of the proposed amendment (see Arguinzoni v Parkway Hosp., 14 AD3d 633; Dahlin v Paladino, 14 AD3d 647).

Claimants' attorney failed to provide a satisfactory explanation for the delay in moving until less than four weeks before trial for leave to amend the already supplemented and amended bill of particulars (see Fuentes v City of New York, 3 AD3d 549, supra). The moving papers also fail to establish the appearance of merit of the proposed amendment. Indeed, the papers do not even specify how defendant allegedly violated the proposed additional subsections of the Industrial Code.

Upon considering all the circumstances, the Court DENIES claimants' application on the grounds that, inter alia, defendant would be unfairly surprised and unduly prejudiced by such amendment at this late date (see Gaisor v Gregory MadisonAve. LLC, 13 AD3d 58, 59-60 [fifth supplemental bill of particulars where violation of Industrial Code section was asserted for the first time was not proper and deemed a nullity because it would unfairly prejudice defendants]).

April 11, 2005
White Plains, New York

Judge of the Court of Claims

[1] The claim of Joan Howlett, Gerald Howlett's wife, is derivative.