TRADER v. STATE 89885 (1999)

Supreme Court, Appellate Division, Fourth Department, New York.

Matter of Kathleen TRADER, Individually and as Administratrix of the Estate of Russell Douglas Henning, Deceased, and Edward Henning, Appellants, v. STATE of New York, Respondent. (Claim No. 89885.)

Decided: March 19, 1999

Present: DENMAN, P.J., PINE, PIGOTT, JR., CALLAHAN and BALIO, JJ.

Collins, Collins & Kantor, P.C., Alan Voos, Buffalo, for Claimants-Appellants. Eliot Spitzer, Attorney General (Gina Ciccone, of counsel), Albany, for Defendant-Respondent.

Although the Court of Claims did not abuse its discretion in granting the motion of defendant to strike allegations of negligent training, supervision and education of its employees from claimants' supplemental bill of particulars on the ground that a new theory of liability was being asserted, we exercise our discretion to grant claimants' alternative request to amend the amended notice of claim to add that theory. The new theory “is based upon the same facts as alleged in the original [notice of claim]” (Garrison v. Clark Mun. Equip., 239 A.D.2d 742, 743, 657 N.Y.S.2d 477). Although discovery has been completed, “[m]erely because the amendment may require defendant[ ] to conduct additional discovery does not, alone, constitute sufficient grounds to justify denial” of claimants' request (Garrison v. Clark Mun. Equip., supra, at 743, 657 N.Y.S.2d 477). We therefore modify the order by granting claimants' alternative request to amend the amended notice of claim.

Order unanimously modified in the exercise of discretion and as modified affirmed without costs.

MEMORANDUM:

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