| Ito v 324 E. 9th St. Corp. |
| 2008 NY Slip Op 02794 [49 AD3d 816] |
| March 25, 2008 |
| Appellate Division, Second Department |
| Keiko Ito et al., Respondents, v 324 East 9th Street Corp.,Appellant, and Legend Valve et al., Respondents. |
—[*1] Jacob D. Fuchsberg Law Firm, LLP, New York, N.Y. (Alan L. Fuchsberg of counsel), forplaintiffs-respondents. Ohrenstein and Brown, LLP, Garden City, N.Y. (Matthew Kogan and Bennett R. Katz ofcounsel), for defendant-respondent Legend Valve. John P. Humphreys, New York, N.Y. (Eric P. Tosca of counsel), for defendant-respondentGreenwich Village Plumbers Supply Co.
In an action, inter alia, to recover damages for personal injuries, the defendant 324 East 9thStreet Corp. appeals (1) from an order of the Supreme Court, Kings County (Firetog, J.), datedOctober 13, 2006, which granted the plaintiffs' motion for leave to reargue (a) the plaintiffs' priorcross motion for leave to amend the bill of particulars, which had been denied in a prior order ofthe same court dated September 23, 2005, and (b) the prior motion of the defendant 324 East 9thStreet Corp. for summary judgment dismissing the complaint insofar as asserted against it, whichhad been granted in the order dated September 23, 2005, and, upon reargument, vacated the orderdated September 23, 2005, granted the plaintiffs' prior cross motion for leave to amend the bill ofparticulars, and denied its prior motion for summary judgment, and (2) as limited by its brief,from [*2]so much of an order of the same court entered May 17,2007, as upon granting its motion, in effect, for leave to reargue, adhered to its originaldetermination.
Ordered that the appeal from the order dated October 13, 2006 is dismissed, as that order wassuperseded by the order entered May 17, 2007, made upon reargument; and it is further,
Ordered that the order entered May 17, 2007 is affirmed insofar as appealed from; and it isfurther,
Ordered that one bill of costs is awarded to the plaintiffs and the defendant Legend Valvepayable by the defendant 324 East 9th Street Corp.
Motions for reargument are addressed to the sound discretion of the court which decided theoriginal motion and may be granted upon a showing that the court overlooked or misapprehendedthe facts or law or for some reason mistakenly arrived at its earlier decision (see E.W. Howell Co., Inc. v S.A.F. La SalaCorp., 36 AD3d 653, 654 [2007]; Carrillo v PM Realty Group, 16 AD3d 611 [2005]; Viola v City of New York, 13 AD3d439, 440 [2004]). Contrary to the contention of the appellant 324 East 9th Street Corp., theSupreme Court providently exercised its discretion in granting leave to reargue to the plaintiffs,as it misapprehended several facts, applied the wrong standard on a cross motion for leave toamend the bill of particulars, and incorrectly concluded that prejudice would result were leavegranted.
Leave to amend a bill of particulars is ordinarily freely given in the absence of prejudice orsurprise (see Grande v Peteroy, 39AD3d 590, 591 [2007]; Dalrymple v Koka, 295 AD2d 469, 469-470 [2002]). Here,there was no evidence that granting the plaintiffs leave to amend the bill of particulars to add anew theory of liability would prejudice or otherwise surprise the appellant. In fact, even on thenew theory, the appellant contended that it had tendered sufficient evidence to warrant grantingsummary judgment in its favor (seeCherebin v Empress Ambulance Serv., Inc., 43 AD3d 364, 365 [2007]). In the absenceof prejudice or surprise, any delay was insufficient to defeat the amendment (see id.).Accordingly, the Supreme Court providently exercised its discretion in granting the plaintiffsleave to amend the bill of particulars (see Telsey v County of Nassau, 237 AD2d 428,429 [1997]; Becker v City of New York, 106 AD2d 595, 597 [1984]; cf. Cherebin vEmpress Ambulance Serv., Inc., 43 AD3d at 365).
Contrary to the appellant's contention, it failed to satisfy its prima facie burden ofestablishing its entitlement to judgment as a matter of law (see Zuckerman v City of NewYork, 49 NY2d 557, 562 [1980]). The failure to make such a showing required the denial ofthe motion regardless of the sufficiency of the opposing papers (see Winegrad v New YorkUniv. Med. Ctr., 64 NY2d 851, 853 [1985]).
The parties' remaining contentions are without merit. Mastro, J.P., Rivera, Spolzino andDickerson, JJ., concur.