Dockery v UPACA Site 7 Assoc., LP

Dockery v UPACA Site 7 Assoc., LP 2017 NY Slip Op 02153 Decided on March 23, 2017 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on March 23, 2017
Tom, J.P., Friedman, Mazzarelli, Kapnick, Kahn, JJ.
155538/12 3494NA 3494N

[*1] Bronski Dockery, etc., Plaintiff-Respondent,

v

UPACA Site 7 Associates, LP, et al., Defendants-Appellants.

McGaw, Alventosa & Zajac, Jericho (Andrew Zajac of counsel), for appellants.

Mirman Markovits & Landau, P.C., New York (David Weissman of counsel), for respondent.

Order, Supreme Court, New York County (Cynthia S. Kern, J.), entered on or about August 3, 2016, which granted the branch of plaintiff's motion that sought leave to amend the bill of particulars, and denied defendants' motion to strike the proposed amended bill of particulars dated April 12, 2016 and dismiss the complaint; and order, same court and Justice, entered August 18, 2016, which, among other things, granted the branch of plaintiff's motion that sought leave to amend the complaint, unanimously affirmed, without costs.

The motion court providently exercised its discretion in granting plaintiff's motion for leave to amend the pleadings, as plaintiff's proposed amendment to change the date of the alleged accident would not cause prejudice or surprise (see Cherebin v Empress Ambulance Serv., Inc., 43 AD3d 364, 365 [1st Dept 2007]; see also CPLR 3025[b]). The date of the accident is not central to defendants' theory of the case (compare Garguilo v Port Auth. of N.Y. & N.J., 137 AD3d 708, 709 [1st Dept 2016] [lv denied 28 NY3d 905 [2016]). Moreover, plaintiff submitted a reasonable excuse for the delay and an affidavit of merit in support of the motion.

We have considered defendants' remaining contentions and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: MARCH 23, 2017

CLERK