ANDRE LONG v. VERIZON CORP (2006)

In an action to recover damages for personal injuries, etc., the plaintiff Darelle Andre-Long appeals, as limited by her brief, from so much of an order of the Supreme Court, Kings County (Ruchelsman, J.), dated July 20, 2005, as denied those branches of her motion which were to vacate a purported settlement of the action, to restore the action to the trial calendar, and for leave to serve an amended bill of particulars.

ORDERED that the order is reversed insofar as appealed from, on the law and in the exercise of discretion, with costs, and those branches of the motion which were to vacate the purported settlement, to restore the action to the trial calendar, and for leave to amend the bill of particulars are granted.

 The purported settlement of this action between the parties during a trial conference is not enforceable since it was never reduced to writing and signed by the parties, nor made in “open court” (CPLR 2104).   The notation allegedly appearing on the Trial Judge's court calendar that this case was “settled” does not constitute a sufficient memorialization of the terms of the alleged settlement so as to satisfy the open-court requirement of CPLR 2104 (see Falcone v. Khurana, 294 A.D.2d 535, 742 N.Y.S.2d 871;  Gustaf v. Fink, 285 A.D.2d 625, 728 N.Y.S.2d 751;  Johnson v. Four G's Truck Rental, 244 A.D.2d 319, 663 N.Y.S.2d 889;  Zambrana v. Memnon, 181 A.D.2d 730, 581 N.Y.S.2d 83).

Since there is no proof in the record that an enforceable settlement was ever reached, the Supreme Court improvidently exercised its discretion in denying that branch of the plaintiff's motion which was to restore the action to the trial calendar (see Johnson v. Four G's Truck Rental, supra;  Margolis v. New York City Tr. Auth., 233 A.D.2d 483, 650 N.Y.S.2d 30).

 Furthermore, that branch of the appellant's motion which was for leave to serve an amended bill of particulars alleging new injuries should have been granted.   Leave to amend a bill of particulars is ordinarily freely given in the absence of prejudice or surprise resulting directly from the delay (see CPLR 3025[b];  McCaskey, Davies & Assoc. v. New York City Health & Hosps. Corp., 59 N.Y.2d 755, 463 N.Y.S.2d 434, 450 N.E.2d 240;  Jones v. Lynch, 298 A.D.2d 499, 748 N.Y.S.2d 509).   The appellant, who sought to amend her bill of particulars 10 months after she discharged her former attorneys for cause and obtained new counsel, established a reasonable excuse for the delay (see Huntington v. Trotta Auto Wreckers, 257 A.D.2d 647, 684 N.Y.S.2d 570;  cf. Fuentes v. City of New York, 3 A.D.3d 549, 771 N.Y.S.2d 178), and the physician's affidavit demonstrated that the appellant's subsequently occurring epileptic seizures were causally related to the subject accident (cf. Itzkowitz v. King Kullen Grocery Co., 22 A.D.3d 636, 804 N.Y.S.2d 350;   Arguinzoni v. Parkway Hosp., 14 A.D.3d 633, 789 N.Y.S.2d 317;  Smith v. Plaza Transp. Ambulance Serv., 243 A.D.2d 555, 665 N.Y.S.2d 513).   However, to prevent substantial prejudice to the defendants, they should be afforded an opportunity to conduct further discovery to adequately prepare for trial (see 22 NYCRR 202.21[d];  Vargas v. City of New York, 4 A.D.3d 524, 772 N.Y.S.2d 381;  Risucci v. Homayoon, 122 A.D.2d 260, 505 N.Y.S.2d 176).