TORRES v. NEW YORK CITY TRANSIT AUTHORITY (2010)

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

Blanca U. TORRES, etc., et al., Plaintiffs–Respondents, v. NEW YORK CITY TRANSIT AUTHORITY, et al., Defendants–Appellants.

Decided: November 04, 2010

TOM, J.P., McGUIRE, ACOSTA, RENWICK, FREEDMAN, JJ.

Wallace D. Gossett, Brooklyn (Anita Isola of counsel), for appellants. Melucci, Celauro & Sklar, LLP, New York (Daniel Melucci of counsel), for respondents.

Order, Supreme Court, New York County (Harold B. Beeler, J.), entered August 12, 2009, which granted plaintiff's motion for leave to amend her bill of particulars, unanimously affirmed, without costs.

Although plaintiff waited until after the note of issue was filed to move to amend the bill of particulars, and failed to provide a reasonable excuse for the delay, we decline to hold that the motion court abused its discretion in granting the motion given the lack of prejudice to defendant and the fact that plaintiff's initial bill of particulars provided notice of the theory of decedent's accident that plaintiff seeks to add. Under these circumstances, mere delay is insufficient to defeat the amendment, especially given that the delay was mitigated by the court's vacating of the note of issue and granting defendant additional discovery in connection therewith (see Cherebin v. Empress Ambulance Serv., Inc., 43 A.D.3d 364, 841 N.Y.S.2d 277 [2007] ).

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