Finocchiaro v Wall St. Mail Pk-Up Serv., Inc.

[*1] Finocchiaro v Wall St. Mail Pk-Up Serv., Inc. 2010 NY Slip Op 51255(U) [28 Misc 3d 130(A)] Decided on July 16, 2010 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on July 16, 2010
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : STEINHARDT, J.P., PESCE and RIOS, JJ
2009-1664 RI C.

Santo Finocchiaro and Concettina Finocchiaro, Respondents,

against

Wall Street Mail Pk-Up Service, Inc. and Karl Wilson, Appellants.

Appeal from an order of the Civil Court of the City of New York, Richmond County (Kim Dollard, J.), entered July 1, 2009. The order granted plaintiffs' motion for leave to amend the bill of particulars.

ORDERED that the order is affirmed without costs.

Plaintiffs commenced this action in 1997 to recover for personal injuries sustained by Santo Finocchiaro in an automobile accident which had occurred in July 1997, and upon a derivative claim on behalf of his wife, Concettina Finocchiaro. A
bifurcated jury trial was held in May 2002. At the end of the liability portion of the trial, the court directed a verdict in plaintiffs' favor. Upon the conclusion of the damages portion of the trial, the jury returned a verdict in plaintiffs' favor. By order entered December 20, 2002, the Civil Court denied defendants' motion to, among other things, set aside the jury verdict. On an appeal from that order, this court, by order dated July 21, 2005, directed a new trial as to damages (8 Misc 3d 133[A], 2005 NY Slip Op 51163[U]).

In December 2008, plaintiffs moved, pursuant to CPLR 3025, for leave to amend the bill of particulars to include the additional injury of a right foot drop, which motion was subsequently withdrawn. A status conference was held in February 2009, and a new trial on the issue of [*2]damages was scheduled for April 27, 2009. By notice of motion returnable in May 2009, supported by an affirmation dated April 24, 2009, plaintiffs moved, pursuant to CPLR 3025, for leave to amend the bill of particulars to include the additional injury of a right foot drop. Plaintiffs' motion was granted by order entered July 1, 2009. The instant appeal by defendants ensued.

While leave to amend a bill of particulars is ordinarily freely granted in the absence of prejudice and surprise, when leave to amend is sought on the eve of trial, judicial discretion should be exercised in a discreet, circumspect, prudent and cautious manner (see Kyong Hi Wohn v County of Suffolk, 237 AD2d 412 [1997]). "In exercising its discretion, the court should consider how long the party seeking the amendment was aware of the facts upon which the motion was predicated, whether a reasonable excuse for the delay was offered, and whether prejudice resulted therefrom . . . In addition, the court must examine the underlying merit of the proposed amendment since to do otherwise would be a waste of judicial resources'" (Cohen v Ho, 38 AD3d 705, 706 [2007] [internal citations omitted]; see also Schreiber-Cross v State of New York, 57 AD3d 881 [2008]; Arguinzoni v Parkway Hosp., 14 AD3d 633 [2005]). When leave to amend is sought based upon the assertion of a new injury, the movant must present a medical affidavit showing a causal connection between the alleged injury and the original injuries sustained (see Kyong Hi Wohn v County of Suffolk, 237 AD2d at 413; Simino v St. Mary's Hosp. of Brooklyn, Catholic Med. Ctr. of Brooklyn & Queens, 107 AD2d 800, 801 [1985]).

Contrary to defendants' contention, for the purposes of the subject motion for leave to amend, the affirmed medical report by Dr. Urs sufficiently showed a causal connection between Santo Finocchiaro's right foot drop and the injuries he had sustained as a result of the 1997 accident. Moreover, plaintiffs' attorney provided a reasonable excuse for the delay, and defendants failed to state how they were surprised, or how they will be prejudiced, by the proposed amendment. Since this court is limited to reviewing matters which are contained in the settled record, we will not consider those assertions made by defendants for the first time on appeal (see Chimarios v Duhl, 152 AD2d 508 [1989]; Jerome Ave. Condominium, Inc. v Ram, 25 Misc 3d 130[A], 2009 NY Slip Op 52116[U] [App Term,2d, 11th & 13th Jud Dists 2009]). Consequently, we find that the Civil Court did not improvidently exercise its discretion in granting plaintiffs' motion for leave to amend the bill of particulars. Accordingly, the order is affirmed.

Steinhardt, J.P., Pesce and Rios, JJ., concur.
Decision Date: July 16, 2010