Attorney's Affirmation in
This claim arises out of an accident that occurred on July 22, 1999 when
Gerald Howlett (hereinafter claimant),
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]).