Young v. New York City Transit Authority ( 1991 )

In an action to recover damages for false arrest, malicious prosecution and battery, the plaintiff appeals from so much of an order of the Supreme Court, Kings County (Garry, J.), dated June 20, 1989, as denied his motion for leave to amend the bill of particulars.

Ordered that the order is affirmed insofar as appealed from, with costs.

Under the circumstances of this case, we discern no improvident exercise of discretion in the Supreme Court’s denial of the plaintiff’s motion to amend the bill of particulars to include a claim of damages for permanent psychological injury (see, CPLR 3025 [b]). The motion was made just prior to the retrial on the issue of damages and nearly four years after the original bill of particulars was served. Contrary to the plaintiff’s contention and as noted in our prior order (see, Young v New York City Tr. Auth., 143 AD2d 656), neither the original pleadings nor the testimony at the first trial presented the defendant with notice of the claim the plaintiff now seeks to add. Indeed, in the original bill of particulars, the plaintiff affirmatively stated that he suffered no permanent injuries. Furthermore, the plaintiff failed to advance any reasonable excuse for his delay in asserting the claim.

We have examined the plaintiff’s remaining contentions and find them to be without merit. Accordingly, the order is affirmed. Bracken, J. P., Kooper, Lawrence, Balletta and O’Brien, JJ., concur.