Citation Numbers: 39 A.D.2d 697
Filed Date: 5/23/1972
Status: Precedential
Modified Date: 1/12/2022
Order, Supreme Court, Bronx County, entered January 7, 1972, granting plaintiffs’ application to amend their bill of particulars affirmed, without costs and without disbursements. Although there has been a considerable interval between the time plaintiff discovered the condition on which the application to amend is based and the motion to amend, we believe that the rules have either been complied with or the failure satisfactorily explained. The defendant has not been prejudiced by the delay. However, due to this delay we do not award costs of this appeal to plaintiffs, though they are the successful parties. Concur — Stevens, P. J., McGivern, Steuer and Capozzoli, JJ.; McNally, J., dissents in the following memorandum: I vote to reverse and deny the application to amend the bill of particulars on the ground of plaintiffs’ gross laches and the insufficiency of the moving papers. The cases in this department have consistently held that on all motions to amend ad damnum clauses in complaints and bills of particulars the papers must contain an affidavit by the plaintiff showing the merits of the action, reasons for the delay and recently discovered facts necessitating the amendment. (Ferrari v. Paramount Plumbing & Heating Co., 20 A D 2d 878; Koi v. P. S. & M. Catering Corp., 15 A D 2d 775.) The plaintiff must also provide a physician’s affidavit demonstrating with some degree of specificity the nature of plaintiff’s injuries, their prospective consequences, the resulting disabilities and the original injuries. (Galarza v. Alcoa S. S. Co., 34 A D 2d 907; Tooley v. Howard Johnson’s, Inc., 29 A D 2d 930; de los Reyes v. United States Lines Co., 28 A D 2d 991; Kind v. Serebreny Corp., 28 A D 2d 988; Jimenez v. Seickel & Sons, 22 A D 2d 643.) Further, the motion should not be granted where the plaintiff, as here, is guilty of inordinate laches or where the amendment would unfairly prejudice the defendant. (Koi v. P. S. & M. Catering Corp., supra.) Relief such as requested is prejudicial