| Rodgers v New York City Tr. Auth. |
| 2013 NY Slip Op 05623 [109 AD3d 535] |
| August 14, 2013 |
| Appellate Division, Second Department |
| Leslie Rodgers, Respondent, v New York CityTransit Authority, Appellant, et al., Defendant. |
—[*1] Hach & Rose, LLP, New York, N.Y. (Robert F. Garnsey and Michael A. Rose ofcounsel), for respondent.
In an action to recover damages for personal injuries, the defendant New York CityTransit Authority appeals from an order of the Supreme Court, Kings County (Graham,J.), dated September 23, 2011, which, upon remittitur from this Court by decision andorder dated February 16, 2010 (see Rodgers v New York City Tr. Auth., 70 AD3d 917[2010]), granted the plaintiff's motion for leave to serve an amended bill of particulars.
Ordered that the order is reversed, on the facts and in the exercise of discretion, withcosts, and the plaintiff's motion for leave to serve an amended bill of particulars isdenied.
The plaintiff allegedly was injured when he was struck by a bus owned by theappellant and operated by its employee (hereinafter together the defendants) as he waswalking across a street at an intersection in Brooklyn.
After a jury trial on the issue of liability, at which the jury found that the defendantswere 80% at fault in the happening of the accident, a trial was conducted on the issue ofdamages. At the close of the evidence in that trial, the Supreme Court charged the jury,over the defendants' objection, that the jury could award damages for increasedsusceptibility to injury based on an alleged pre-existing condition. The jury found thatthe plaintiff sustained a significant limitation of use of a body function or system, andawarded him $2,375,871 in damages.
On appeal from the judgment, this Court concluded that the Supreme Court erred incharging the jury that the plaintiff could be awarded damages for increased susceptibilityto injury based on an alleged pre-existing condition because the plaintiff had failed toallege such a theory of causation in his complaint or bill of particulars (see Rodgers v New York City Tr.Auth., 70 AD3d 917 [2010]). Accordingly, this Court reversed the judgmentand remitted the matter to the Supreme Court for a new trial on the issue of causation,and, if warranted, on the issue of damages.
On remittal to the Supreme Court, the plaintiff moved for leave to amend his bill of[*2]particulars to allege the "aggravation and/oractivation of a previously asymptomatic condition to the spine and activation of a latentdisease defect." The Supreme Court granted the plaintiff's motion.
Generally, in the absence of prejudice or surprise to the opposing party, leave toamend a bill of particulars should be freely granted unless "the proposed amendment ispalpably insufficient or patently devoid of merit" (Delahaye v Saint Anns School, 40 AD3d 679, 684-685[2007] [internal quotation marks omitted]; see CPLR 3025 [b]; Schreiber-Cross v State of NewYork, 57 AD3d 881, 885 [2008]; Morris v Queens Long Is. Med. Group, P.C., 49 AD3d827, 828 [2008]). "However, where the application for leave to amend is made longafter the action has been certified for trial, 'judicial discretion in allowing suchamendments should be discrete, circumspect, prudent, and cautious' " (Morris vQueens Long Is. Med. Group, P.C., 49 AD3d at 828, quoting Clarkin v Staten Is.Univ. Hosp., 242 AD2d 552, 552 [1997]; see Schreiber-Cross v State of NewYork, 57 AD3d at 885; Delahaye v Saint Anns School, 40 AD3d at684-685).
Under the circumstances of this case, including the fact that, during four years ofdiscovery, the plaintiff affirmatively maintained that his injuries did not include theaggravation of a pre-existing condition, as well as the lateness of his request for leave toamend, the prejudice to the defendants, and the lack of any reasonable excuse for thedelay, the Supreme Court improvidently exercised its discretion in granting the plaintiff'smotion for leave to amend his bill of particulars (see Pergament v Roach, 41 AD3d 569, 572 [2007]; Voyticky v Duffy, 19 AD3d685 [2005]; Sewkarran vDeBellis, 11 AD3d 445, 445-446 [2004]; Leonardi v City of New York,294 AD2d 408, 409 [2002]). Accordingly, the Supreme Court should have denied themotion. Skelos, J.P., Angiolillo, Dickerson and Roman, JJ., concur.