Issue: Under New York law, when custodial care is added to the bill of particulars, does this require a leave of court because it raises a new injury or cause of action?
|Area of Law:||Litigation & Procedure|
|Keywords:||Bill of particulars; Custodial care; Leave of court|
|Cited Cases:||555 N.Y.S.2d 775; 490 N.Y.S.2d 781; 487 N.Y.S.2d 71; 514 N.Y.S.2d 460; 111 A.D.2d 798; 129 A.D.2d 697; 114 A.D.2d 833; 158 A.D.2d 504; 494 N.Y.S.2d 744; 156 A.D.2d 338; 548 N.Y.S.2d 291|
|Cited Statutes:||CPLR 3025(b) (1991)|
Leave of court is required only if the addition to the bill of particulars raises a new injury or cause of action. Granting leave is within the discretion of the trial court, subject to the admonition that such leave shall be freely granted absent proof of actual prejudice to the opposing party. CPLR 3025(b) (1991); Moore v. New York City Transit Auth., 161 A.D.2d 505, 506, 555 N.Y.S.2d 775, 776 (1990); Dubissette v. Davis, 158 A.D.2d 504, 505, 551 N.Y.S.2d 267, 268 (1990).
In Sentowski v. Boulevard Hosp., 109 A.D.2d 878, 487 N.Y.S.2d 71 (1985), this Court noted that in order to amend on the eve of trial, "plaintiff [must] show that his late claim had merit," noting that the "sole purpose of a bill of particulars is to amplify the pleadings, limit the proof, and prevent surprise at trial." 109 A.2d at 878-79, 487 N.Y.S.2d at 72 (citations omitted). This claim has merit, as the supporting affidavits of two medical specialists substantiate.
In Leon v. Central Gen. Hosp., 156 A.D.2d 338, 339, 548 N.Y.S.2d 291, 292 (1989), the affidavit supporting the amendment was "insufficient to establish either a departure from accepted practice or a connection to the alleged injury."
"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 […]