McGowan v RPC Realty Corp.

McGowan v RPC Realty Corp. 2007 NY Slip Op 10116 [46 AD3d 771] December 18, 2007 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 13, 2008

Eugene McGowan et al., Appellants,
v
RPC Realty Corporation et al., Respondents.

—[*1] Barasch McGarry Salzman & Penson, New York, N.Y. (Dominique Penson of counsel), for appellants.

Jeffrey Samel & Partners, New York, N.Y. (David Samel of counsel), for respondents.

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Kings County (Hurkin-Torres, J.), dated April 28, 2006, which denied their motion for leave to amend their bill of particulars to include a claim for lost earnings.

Ordered that the order is affirmed, with costs.

"This Court has consistently maintained that 'while leave to amend a pleading shall be freely granted (see CPLR 3025 [b]), a motion to amend is committed to the broad discretion of the trial court . . . and the resulting determination 'will not lightly be set aside' " (F.G.L. Knitting Mills v 1087 Flushing Prop., 191 AD2d 533, quoting Citrin v Royal Ins. Co., 172 AD2d 795 [citations omitted]).

Here, the plaintiffs moved for leave to amend their bill of particulars to include a claim for lost earnings after the note of issue was filed and while the case was on the trial calendar. The Supreme Court did not improvidently exercise its discretion in denying the plaintiffs' motion, particularly since they failed to provide a reasonable excuse for the delay in making the motion (see Volpe v Good Samaritan Hosp., 213 AD2d 398 [1995]). Spolzino, J.P., Krausman, Angiolillo and McCarthy, JJ., concur.